Freedom of Speech and Independent Judgment Review in Copyright Cases

Yale Law Journal

Volumn 107, Issue 8, 1998, Pages 2431-2470

  Volokh, Eugene ^a   McDonnell, Brett ^a  

^a NONE

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EID: 0347623682     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797347     Document Type: Review

References (238)

1. Note that we speak here of copyright claims based on material that is "expression" for free speech purposes - books, movies, songs, paintings, and so on. Our argument doesn't cover copyrighted software, which (at least in object code) generally doesn't qualify as speech for First Amendment purposes. Cf. Texas v. Johnson, 491 U.S. 397, 406 (1989) (stating that, to be protected under the Free Speech Clause, activity must be "'sufficiently imbued with elements of communication'" (quoting Spence v. Washington, 418 U.S. 405, 409 (1974))).
2. See, e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
3. 17 U.S.C. §§ 101-1101 (1994).
4. 466 U.S. 485 (1984).
5. Id. at 505.
6. See infra Section I.E.
7. See Bose, 466 U.S. at 505.
8. Id. at 502.
9. We discuss here "substantial similarity" rather than "probative similarity." Copyright law prohibits (1) copying of (2) another's expression. Courts consider whether the plaintiff's and defendant's works are similar for both prongs of this inquiry. For the first prong, they ask whether the similarity is probative of the fact of copying; for the second, they ask whether the similarity is substantial enough to make the defendant's action into copying of the expression and not just of the idea. See, e.g., 2 PAUL GOLDSTEIN, COPYRIGHT § 8.0 (2d ed. 1996); MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13-28 n.3.2 (1997); Alan Latman, "Probative Similarity" as Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement, 90 COLUM. L. REV. 1187, 1190 (1990). Probative similarity is relevant to a purely factual question: Did copying take place? Substantial similarity, on the other hand, is a question of degree and an application of law to fact. We also don't discuss any glosses on substantial similarity that circuit courts have implemented, such as the Ninth Circuit's bifurcated intrinsic/extrinsic test. See Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990). Our points apply to substantial similarity of expression in all circuits. Finally, we don't generally discuss independent review of fair use questions because courts already conduct such review, at least when the factfinder below is a trial judge. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985); see also Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1258-59 (2d Cir. 1986) (holding that fair use is for the trial judge to determine at summary judgment, so long as the underlying historical facts are not in dispute); infra Subsection II.B.4. The points we make in this Essay are, however, relevant to fair use cases involving review of jury verdicts.
10. See infra note 52 and accompanying text.
11. See Henry P. Monaghan, First Amendment "Due Process," 83 HARV. L. REV. 518 (1970).
12. Cf. Spence v. Washington, 418 U.S. 405, 417 (1974) (Rehnquist, J., dissenting) (citing copyright law as an example of a speech restriction).
13. See 17 U.S.C. § 506 (1994) (criminalizing certain kinds of infringement).
14. See, e.g., Tin Pan Apple Inc. v. Miller Brewing Co., 30 U.S.P.Q.2d (BNA) 1791 (S.D.N.Y. Feb. 23, 1994).
15. See, e.g., Steinberg v. Columbia Pictures Indus., Inc., 663 F. Supp. 706 (S.D.N.Y. 1987); Kisch v. Ammirati & Puris Inc., 657 F. Supp. 380 (S.D.N.Y. 1987); cf. Woods v. Universal City Studios, Inc., 920 F. Supp. 62 (S.D.N.Y. 1996) (enjoining distribution of the movie 12 Monkeys because one scene infringed on a copyrighted drawing).
16. See, e.g., Toksvig v. Bruce Publ'g Co., 181 F.2d 664 (7th Cir. 1950); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936); cf. Judge Refuses To Halt Release of 'Amistad,' Rejects Writer's Claim, WALL ST. J., Dec. 9, 1997, at B16 (describing a lawsuit by a writer who claimed that Steven Spielberg's movie Amistad was based on her novel about the same historical incident, and the court's conclusion that there was likely no infringement).
17. 471 U.S. 539 (1985).
18. Id. at 558.
19. Id. at 560.
20. Id. at 556 (citing 17 U.S.C. § 102(b)).
21. 403 U.S. 713 (1971).
22. Id. at 726 n.* (Brennan, J., concurring), cited in Harper & Row, 471 U.S. at 556.
23. Harper & Row, 471 U.S. at 559.
24. We mean "unprotected" in the literal sense: The speech may be constitutionally punished by copyright law, despite the First Amendment, which means that the First Amendment doesn't protect the speech against legal sanction. In this respect, infringing speech is just like the traditional exceptions to First Amendment protection, such as obscenity, defamation, fighting words, threats, child pornography, advocacy of unlawful conduct that's intended and likely to produce imminent lawlessness, publication of sailing dates of troop ships, and the like. See, e.g., Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring) (listing such exceptions). We don't suggest that infringing speech is "valueless": Like advocacy of unlawful conduct, or revelation of extremely sensitive government secrets, it can often be an important contribution to public debate or, at least, public entertainment. It is punishable not because of its perceived lack of value, but because of its perceived harm and the supposedly ample alternative avenues for expression. But whatever the reason, the speech is unprotected by the First Amendment against the operation of copyright law. Of course, speech that is unprotected against copyright law might still be protected against other laws: The government may not, for instance, constitutionally apply a ban on racist speech or blasphemous speech even to material that's infringing, just as it may not apply a ban on racist speech even to material that constitutes fighting words. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
25. Cf. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 577-78 n.13 (1977). As the Zacchini Court wrote: We note that Federal District Courts have rejected First Amendment challenges to the federal copyright law on the ground that "no restraint [has been] placed on the use of an idea or concept." . . . See also Walt Disney Productions v. Air Pirates, 345 F. Supp. 108, 115-116 (ND Cal. 1972) (citing Nimmer, Does Copyright Abridge The First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1970), who argues that copyright law does not abridge the First Amendment because it does not restrain the communication of ideas or concepts) . . . . Id. (some citations omitted) (alteration in original); see Lee v. Runge, 404 U.S. 887, 892 (1971) (Douglas, J., dissenting from denial of certiorari) ("Serious First Amendment questions would be raised if Congress' power over copyrights were construed to include the power to grant monopolies over certain ideas."); Toro Co. v. R & R Prods. Co., 787 F.2d 1208, 1212 (8th Cir. 1986) (citing Harper & Row and stating that the idea-expression dichotomy is partly grounded "in the First Amendment interest in the free exchange of ideas"); see also Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. REV. 1180, 1192 (1970) (stating that "the idea-expression line represents an acceptable definitional balance as between copyright and free speech interests"); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 759 (9th Cir. 1978) (similar); Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1170 (9th Cir. 1977) (stating that the "idea-expression dichotomy already serves to accommodate the competing interests of copyright and the first amendment").
26. See, e.g., Nimmer, supra note 25, at 1190-93.
27. Portions of the analysis in this section are borrowed from Eugene Volokh, Freedom of Speech and Appellate Review in Workplace Harassment Cases, 90 Nw. U. L. REV. 1009 (1996).
28. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see also Curtis Publ'g Co. v. Butts, 388 U.S. 130, 153 (1967).
29. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505 (1984). Professor Henry Monaghan describes this quote and the statement quoted infra in the text accompanying note 34 as the "core of the [Bose] opinion." Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229, 243 (1985).
30. Bose, 466 U.S. at 511; see id. at 505 ("The principle of viewpoint neutrality that underlies the First Amendment itself also imposes a special responsibility on judges whenever it is claimed that a particular communication is unprotected." (citation omitted)).
31. Id. at 505.
32. Id. at 502.
33. Id.
34. Id. at 511.
35. Cf. MCA, Inc. v Wilson 677 F.2d 180, 185 (2d Cir. 1981) (concluding that the district court's copyright infringement holding was not clearly erroneous, but stating that a contrary holding would likewise not have been clearly erroneous).
36. Speiser v. Randall, 357 U.S. 513, 526 (1958); cf. Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 303-04 (1996) (arguing that "the copyright law safeguards that have made First Amendment defenses seem overly intrusive and unnecessary have in fact been only sporadically effective in protecting First Amendment values," in part because "while the idea/expression dichotomy makes sense in principle, it is notoriously malleable and indeterminate"); id. at 381 (describing how "prevailing uncertainties" in copyright law interfere with the creation of certain kinds of new works); Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's 'Total Concept and Feel,' 38 EMORY L.J. 393, 395-97 (1989) (stressing how the vagueness of the idea-expression dichotomy can deter constitutionally protected speech); Diane Leenheer Zimmerman, Information as Speech, Information as Goods, 33 WM. & MARY L. REV. 665, 709 (1992) (arguing that the "fuzzed line between idea and expression" creates "uncertainty [that] can cast a serious chill on communicative activities"). See generally Jessica Litman, Reforming Information Law in Copyright's Image, 22 U. DAYTON L. REV. 587, 600-02 (1997).
37. Speiser v. Randall, 357 U.S. 513, 526 (1958); cf. Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 303-04 (1996) (arguing that "the copyright law safeguards that have made First Amendment defenses seem overly intrusive and unnecessary have in fact been only sporadically effective in protecting First Amendment values," in part because "while the idea/expression dichotomy makes sense in principle, it is notoriously malleable and indeterminate"); id. at 381 (describing how "prevailing uncertainties" in copyright law interfere with the creation of certain kinds of new works); Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's 'Total Concept and Feel,' 38 EMORY L.J. 393, 395-97 (1989) (stressing how the vagueness of the idea-expression dichotomy can deter constitutionally protected speech); Diane Leenheer Zimmerman, Information as Speech, Information as Goods, 33 WM. & MARY L. REV. 665, 709 (1992) (arguing that the "fuzzed line between idea and expression" creates "uncertainty [that] can cast a serious chill on communicative activities"). See generally Jessica Litman, Reforming Information Law in Copyright's Image, 22 U. DAYTON L. REV. 587, 600-02 (1997).
38. Speiser v. Randall, 357 U.S. 513, 526 (1958); cf. Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 303-04 (1996) (arguing that "the copyright law safeguards that have made First Amendment defenses seem overly intrusive and unnecessary have in fact been only sporadically effective in protecting First Amendment values," in part because "while the idea/expression dichotomy makes sense in principle, it is notoriously malleable and indeterminate"); id. at 381 (describing how "prevailing uncertainties" in copyright law interfere with the creation of certain kinds of new works); Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's 'Total Concept and Feel,' 38 EMORY L.J. 393, 395-97 (1989) (stressing how the vagueness of the idea-expression dichotomy can deter constitutionally protected speech); Diane Leenheer Zimmerman, Information as Speech, Information as Goods, 33 WM. & MARY L. REV. 665, 709 (1992) (arguing that the "fuzzed line between idea and expression" creates "uncertainty [that] can cast a serious chill on communicative activities"). See generally Jessica Litman, Reforming Information Law in Copyright's Image, 22 U. DAYTON L. REV. 587, 600-02 (1997).
39. Speiser v. Randall, 357 U.S. 513, 526 (1958); cf. Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 303-04 (1996) (arguing that "the copyright law safeguards that have made First Amendment defenses seem overly intrusive and unnecessary have in fact been only sporadically effective in protecting First Amendment values," in part because "while the idea/expression dichotomy makes sense in principle, it is notoriously malleable and indeterminate"); id. at 381 (describing how "prevailing uncertainties" in copyright law interfere with the creation of certain kinds of new works); Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's 'Total Concept and Feel,' 38 EMORY L.J. 393, 395-97 (1989) (stressing how the vagueness of the idea-expression dichotomy can deter constitutionally protected speech); Diane Leenheer Zimmerman, Information as Speech, Information as Goods, 33 WM. & MARY L. REV. 665, 709 (1992) (arguing that the "fuzzed line between idea and expression" creates "uncertainty [that] can cast a serious chill on communicative activities"). See generally Jessica Litman, Reforming Information Law in Copyright's Image, 22 U. DAYTON L. REV. 587, 600-02 (1997).
40. See Bose, 466 U.S. at 504-08 (citing Supreme Court cases applying the independent review rule to fighting words, incitement, obscenity, and child pornography); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 567 (1995) (applying Bose to the question of whether conduct was expressive). The Court has used similar reasoning outside the speech context. See Ornelas v. United States 116 S. Ct. 1657, 1662 (1996) (applying a Bose-like analysis to probable cause decisions in Fourth Amendment cases); Thompson v. Keohane, 516 U.S. 99, 112 (1995) (applying a similar analysis to in-custody determinations for purposes of Miranda v. Arizona, 384 U.S. 436 (1966)); Miller v. Fenton, 474 U.S. 104, 114 (1985) (applying Bose by analogy in the Fourteenth Amendment Due Process Clause context to the question of whether a confession was voluntary); cf. Murphy v. I.S.K.Con. of New England, Inc., 571 N.E.2d 340, 345 (Mass. 1991) (reading Bose as applicable to Free Exercise Clause issues); see also discussion infra Subsection II.B.3.
41. See, e.g. Luke Records, Inc. v. Navarro, 960 F.2d 134, 138 (11th Cir. 1992).
42. See, e.g., Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1021 (5th Cir. 1987); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1071 (Mass. 1989).
43. See, e.g., Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1120-21 (11th Cir. 1992).
44. See, e.g., Standing Comm. v. Yagman, 55 F.3d 1430, 1443 (9th Cir. 1995).
45. See, e.g., Swineford v. Snyder County, 15 F.3d 1258, 1265 (3d Cir. 1994); Mekss v. Wyoming Girls' Sch., 813 P.2d 185, 194 (Wyo. 1991); see also Rankin v. McPherson, 483 U.S. 378, 385-86 & n.9 (1987).
46. See, e.g., AIDS Action Comm. v. Massachusetts Bay Transp. Auth., 42 F.3d 1, 7 (1st Cir. 1994); see also Brown v. Palmer, 915 F.2d 1435, 1441 (10th Cir. 1990) (independently reviewing factual findings underlying the determination of whether a forum is public), aff'd on reh'g, 944 F.2d 732 (10th Cir. 1991) (en banc).
47. See, e.g., Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 108 (1990) (plurality opinion); id. at 111-17 (Marshall, J., concurring) (engaging in independent review, but not citing Bose directly); Revo v. Disciplinary Bd., 106 F.3d 929, 932 (10th Cir.), cert. denied, 117 S. Ct. 2515 (1997); Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Comm'n, 24 F.3d 754, 755-56 (5th Cir. 1994); Don's Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053-54 & n.9 (11th Cir. 1987). Some cases reviewing federal administrative agency findings seem not to have followed Bose, grounding their decisions on a deference-to-expert-agencies rationale. Two such cases involved review of Federal Trade Commission findings that ads were false or misleading. See Kraft, Inc. v. FTC, 970 F.2d 311, 316-17 (7th Cir. 1992); FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 44 (D.C. Cir. 1985). In both cases, the courts also argued that Bose was inapplicable to commercial speech, but that seems to be in considerable tension with the Supreme Court's position in Peel, as well as the circuit decisions in Joe Conte Toyota, Revo, and Don's Porta Signs. Cf. Martin H. Redish, Product Health Claims and the First Amendment, 43 VAND. L. REV. 1433, 1459-60 & n.144 (1990) (criticizing Brown & Williamson on Bose grounds). Another line of cases in which courts seem to have departed from Bose involves review of National Labor Relations Board findings that unionization-related speech by an employer or a union was impermissibly coercive. These cases follow NLKB v. Gissel Packing Co., 395 U.S. 575, 620 (1969), which held that "a reviewing court must recognize the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship." Since Gissel, lower courts have not applied independent judgment in this area, but have instead reviewed NLRB findings for "substantial evidence." E.g., DTR Indus., Inc. v. NLRB, 39 F.3d 106, 114 (6th Cir. 1994). Gissel came long before Bose, and no court has confronted the tension between them, though distinguished commentators have pointed to the discrepancy. See, e.g., Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 916, 976, 990 (1988); Monaghan, supra note 29, at 244 & n.84, 258. To our knowledge, no court or commentator has suggested that substantial evidence review be transplanted from the expert agency setting to the review of findings made by judges and juries, where Bose is firmly entrenched. Indeed, the only non-agency case we could find that declined to follow Bose in determining whether speech is unprotected, Levine v. CMP Publications, Inc., 738 F.2d 660 (5th Cir. 1984), seems no longer to be good law. Levine involved a finding that defamatory statements about private figures were made negligently. The court reasoned that Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), "allow[ed] the states to regulate [private figure defamation] within much less restrictive bounds than those imposed [on public figure defamation]" and that therefore Bose was inapplicable. Levine, 738 F.2d at 672 n.19. But after Levine was decided, the Supreme Court made clear that Bose does indeed apply to negligence findings in private figure cases. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990); see also LeDoux v. Northwest Publ'g, Inc., 521 N.W.2d 59, 69 (Minn. App. 1994) (applying Bose in such a situation); Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 655 A.2d 417, 423 (N.J. 1994) (same).
48. See, e.g., Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 108 (1990) (plurality opinion); id. at 111-17 (Marshall, J., concurring) (engaging in independent review, but not citing Bose directly); Revo v. Disciplinary Bd., 106 F.3d 929, 932 (10th Cir.), cert. denied, 117 S. Ct. 2515 (1997); Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Comm'n, 24 F.3d 754, 755-56 (5th Cir. 1994); Don's Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053-54 & n.9 (11th Cir. 1987). Some cases reviewing federal administrative agency findings seem not to have followed Bose, grounding their decisions on a deference-to-expert-agencies rationale. Two such cases involved review of Federal Trade Commission findings that ads were false or misleading. See Kraft, Inc. v. FTC, 970 F.2d 311, 316-17 (7th Cir. 1992); FTC v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 44 (D.C. Cir. 1985). In both cases, the courts also argued that Bose was inapplicable to commercial speech, but that seems to be in considerable tension with the Supreme Court's position in Peel, as well as the circuit decisions in Joe Conte Toyota, Revo, and Don's Porta Signs. Cf. Martin H. Redish, Product Health Claims and the First Amendment, 43 VAND. L. REV. 1433, 1459-60 & n.144 (1990) (criticizing Brown & Williamson on Bose grounds). Another line of cases in which courts seem to have departed from Bose involves review of National Labor Relations Board findings that unionization-related speech by an employer or a union was impermissibly coercive. These cases follow NLKB v. Gissel Packing Co., 395 U.S. 575, 620 (1969), which held that "a reviewing court must recognize the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship." Since Gissel, lower courts have not applied independent judgment in this area, but have instead reviewed NLRB findings for "substantial evidence." E.g., DTR Indus., Inc. v. NLRB, 39 F.3d 106, 114 (6th Cir. 1994). Gissel came long before Bose, and no court has confronted the tension between them, though distinguished commentators have pointed to the discrepancy. See, e.g., Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 916, 976, 990 (1988); Monaghan, supra note 29, at 244 & n.84, 258. To our knowledge, no court or commentator has suggested that substantial evidence review be transplanted from the expert agency setting to the review of findings made by judges and juries, where Bose is firmly entrenched. Indeed, the only non-agency case we could find that declined to follow Bose in determining whether speech is unprotected, Levine v. CMP Publications, Inc., 738 F.2d 660 (5th Cir. 1984), seems no longer to be good law. Levine involved a finding that defamatory statements about private figures were made negligently. The court reasoned that Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), "allow[ed] the states to regulate [private figure defamation] within much less restrictive bounds than those imposed [on public figure defamation]" and that therefore Bose was inapplicable. Levine, 738 F.2d at 672 n.19. But after Levine was decided, the Supreme Court made clear that Bose does indeed apply to negligence findings in private figure cases. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990); see also LeDoux v. Northwest Publ'g, Inc., 521 N.W.2d 59, 69 (Minn. App. 1994) (applying Bose in such a situation); Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 655 A.2d 417, 423 (N.J. 1994) (same).
49. See, e.g., Turner Broad. Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 666-67 (1994); Association of Community Orgs. for Reform Now v. St. Louis County, 930 F.2d 591, 595-96 (8th Cir. 1991).
50. In fact, refining the definition of "substantial similarity of expression" serves the goals of copyright law as well as of the First Amendment: "Because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible." Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994).
51. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 506 (1984).
52. Id.
53. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).
54. Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942).
55. The Bose rule applies equally to jury trials and bench trials. See Bose, 466 U.S. at 508 & n.27 (citing New York Times Co. v. Sullivan, 376 U.S. at 285). New York Times Co. v. Sullivan specifically held that the Seventh Amendment's ban on reexamination of "fact[s] tried by a jury" didn't preclude independent review by appellate courts in constitutional cases. 376 U.S. at 285 & n.26.
56. See Whelan Assoc., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1233 (3d Cir. 1986); Hennon v. Kirkland's Inc., No. 94-2595, 1995 WL 490266, at *3 (4th Cir. Aug. 17, 1995); Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 534 (5th Cir. 1994); Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 506 (7th Cir. 1994); Williams v. Kaag Mfrs., Inc., 338 F.2d 949, 951 (9th Cir. 1964).
57. See Knitwares, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995); Sherry Mfg. Co. v. Towel King of Fla., Inc., 753 F.2d 1565, 1569 n.6 (11th Cir. 1985). But see Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 825 & n.4 (11th Cir. 1982) (reviewing for clear error). In MiTek Holdings, Inc. v. Arce Engineering Co., 89 F.3d 1548, 1554 (11th Cir. 1996), the Eleventh Circuit identified the idea-expression determination as a mixed question of law and fact; the Eleventh Circuit generally reviews such questions de novo, see International Ins. Co. v. Johns, 874 F.2d 1447, 1453 (11th Cir. 1989), but MiTek Holdings did not clearly indicate the standard of review that it was applying.
58. See, e.g., CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1525 (1st Cir. 1996) (reviewing a copyright case in the "light most favorable to the jury's verdict"); see also, e.g., Gaste v. Kaiserman, 863 F.2d 1061, 1068-69 (2d Cir. 1988); Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290 (3d Cir. 1991); Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1013-14 (9th Cir. 1985).
59. This is probably right for probative similarity, though not for substantial similarity. Cf. supra note 9 (distinguishing the two). The failure of many courts to distinguish clearly between these two kinds of similarity may help explain why they use clear error review for both.
60. FED R. CIV. P. 52(a) ("Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.").
61. See, e.g., Carter v. Bennett, 840 F.2d 63, 64-65 (D.C. Cir. 1988); American Geophysical Union v. Texaco Inc., 37 F.3d 881, 886 (2d Cir. 1994); North River Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995); Estate of Waters v. Commissioner, 48 F.3d 838, 842 (4th Cir. 1995); Davis v. Odeco, Inc., 18 F.3d 1237, 1245 n.30 (5th Cir. 1994); United States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993); Cooper Tire & Rubber Co. v. St. Paul Fire & Marine Ins. Co., 48 F.3d 365, 369 (8th Cir. 1995); Jordan v. Clark, 847 F.2d 1368, 1375 & n.7 (9th Cir. 1988); International Ins. Co., 874 F.2d at 1453. But see Williams v. Poulos, 11 F.3d 271, 278 & n. 11 (1st Cir. 1993) (stating that mixed questions of law and fact should be reviewed with varying degrees of deference, depending on how "fact dominated" the question is); Mars Steel Corp. v. Continental Bank, 880 F.2d 928, 933 (7th Cir. 1989) (en banc) (stating that "fact-bound" mixed questions of law and fact should be reviewed for clear error); Ershick v. United Mo. Bank, 948 F.2d 660, 666 (10th Cir. 1991) (noting that "mixed questions of fact and law are reviewed under either the clearly erroneous or de novo standards, depending on whether the mixed question involves primarily a question of fact or the considering of legal principles"). The Supreme Court has not resolved this question. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982).
62. See, e.g., MacArthur v. University of Tex. Health Ctr., 45 F.3d 890, 896 (5th Cir. 1995); Ingram v. Acands, Inc., 977 F.2d 1332, 1340 (9th Cir. 1992); Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir. 1993); Therma-Tru Corp. v. Peachtree Doors Inc., 44 F.3d 988, 991 (Fed. Cir. 1995); Meyers v. Chapman Printing Co., 840 S.W.2d 814, 822-23 (Ky. 1992).
63. Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).
64. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688-89 (1989); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499-500 (1984).
65. Indeed, this is the rationale underlying the Second Circuit's de novo review for substantial similarity findings. See Concord Fabrics, Inc. v. Marcus Bros. Textile Corp., 409 F.2d 1315, 1317 (2d Cir. 1969) ("As we have before us the same record, and as no part of the decision below turned on credibility, we are in as good a position to determine the question as is the district court.").
66. See, e.g., Bose, 466 U.S. at 499-500; United States v. D'Ambrosio, No. 92-10526, 1993 WL 410454, at *2 (9th Cir. Oct. 14, 1993) (stating that "the standard of review controls the outcome of this case"); United States v. Conley, 4 F.3d 1200, 1204 (3d Cir. 1993) (stating that "the standard of review can be outcome determinative"); Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992) ("The relevant standards of review are critical to the outcome of this case."); United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc) (stating that "the standard chosen often affects the outcome of the case").
67. See, e.g., Paul R. Michel, Advocacy in the Federal Circuit, C961 A.L.I.-A.B.A. 5, 8 (1994) ("One of my main messages to you [as a circuit judge of the Court of Appeals for the Federal Circuit] is that standards of review influence dispositions in the Federal Circuit far more than many advocates realize."); see also Sally Baumler, Appellate Review Under the Bail Reform Act, 1992 U. ILL. L. REV. 483, 486 ("Because the standard of review can affect the outcome of a case, one of the first issues in any appeal is the proper standard of appellate review to be applied."); W. Wendell Hall, Standards of Appellate Review in Civil Cases, 21 ST. MARY'S L.J. 865, 867-68 (1990) ("Because the appropriate standard of review will control the outcome of an appeal, appellate practitioners must consider the standard of review with the same thoughtful consideration that they give to the facts and the substantive law."); William H. Kenety, Observations on Teaching Appellate Advocacy, 45 J. LEGAL EDUC. 582, 586 (1995) ("The applicable standard of review determines the outcome of many appellate decisions."); cf. FED. R. APP. P. 28(a)(6) (requiring appellants to brief the standard of review); United States v. McConney, 728 F.2d 1195, 1199-204 (9th Cir. 1984) (en banc) (discussing standards of review at length); Michael Asimow, The Scope of Judicial Review of Decisions of California Administrative Agencies, 42 UCLA L. REV. 1157, 1189 n.112 (1995) ("As an extreme example, one practitioner told me that in many years of practice representing professional licensees . . . he had never lost an independent judgment case and never won a substantial evidence case.").
68. See, e.g., Paul R. Michel, Advocacy in the Federal Circuit, C961 A.L.I.-A.B.A. 5, 8 (1994) ("One of my main messages to you [as a circuit judge of the Court of Appeals for the Federal Circuit] is that standards of review influence dispositions in the Federal Circuit far more than many advocates realize."); see also Sally Baumler, Appellate Review Under the Bail Reform Act, 1992 U. ILL. L. REV. 483, 486 ("Because the standard of review can affect the outcome of a case, one of the first issues in any appeal is the proper standard of appellate review to be applied."); W. Wendell Hall, Standards of Appellate Review in Civil Cases, 21 ST. MARY'S L.J. 865, 867-68 (1990) ("Because the appropriate standard of review will control the outcome of an appeal, appellate practitioners must consider the standard of review with the same thoughtful consideration that they give to the facts and the substantive law."); William H. Kenety, Observations on Teaching Appellate Advocacy, 45 J. LEGAL EDUC. 582, 586 (1995) ("The applicable standard of review determines the outcome of many appellate decisions."); cf. FED. R. APP. P. 28(a)(6) (requiring appellants to brief the standard of review); United States v. McConney, 728 F.2d 1195, 1199-204 (9th Cir. 1984) (en banc) (discussing standards of review at length); Michael Asimow, The Scope of Judicial Review of Decisions of California Administrative Agencies, 42 UCLA L. REV. 1157, 1189 n.112 (1995) ("As an extreme example, one practitioner told me that in many years of practice representing professional licensees . . . he had never lost an independent judgment case and never won a substantial evidence case.").
69. See, e.g., Paul R. Michel, Advocacy in the Federal Circuit, C961 A.L.I.-A.B.A. 5, 8 (1994) ("One of my main messages to you [as a circuit judge of the Court of Appeals for the Federal Circuit] is that standards of review influence dispositions in the Federal Circuit far more than many advocates realize."); see also Sally Baumler, Appellate Review Under the Bail Reform Act, 1992 U. ILL. L. REV. 483, 486 ("Because the standard of review can affect the outcome of a case, one of the first issues in any appeal is the proper standard of appellate review to be applied."); W. Wendell Hall, Standards of Appellate Review in Civil Cases, 21 ST. MARY'S L.J. 865, 867-68 (1990) ("Because the appropriate standard of review will control the outcome of an appeal, appellate practitioners must consider the standard of review with the same thoughtful consideration that they give to the facts and the substantive law."); William H. Kenety, Observations on Teaching Appellate Advocacy, 45 J. LEGAL EDUC. 582, 586 (1995) ("The applicable standard of review determines the outcome of many appellate decisions."); cf. FED. R. APP. P. 28(a)(6) (requiring appellants to brief the standard of review); United States v. McConney, 728 F.2d 1195, 1199-204 (9th Cir. 1984) (en banc) (discussing standards of review at length); Michael Asimow, The Scope of Judicial Review of Decisions of California Administrative Agencies, 42 UCLA L. REV. 1157, 1189 n.112 (1995) ("As an extreme example, one practitioner told me that in many years of practice representing professional licensees . . . he had never lost an independent judgment case and never won a substantial evidence case.").
70. See, e.g., Paul R. Michel, Advocacy in the Federal Circuit, C961 A.L.I.-A.B.A. 5, 8 (1994) ("One of my main messages to you [as a circuit judge of the Court of Appeals for the Federal Circuit] is that standards of review influence dispositions in the Federal Circuit far more than many advocates realize."); see also Sally Baumler, Appellate Review Under the Bail Reform Act, 1992 U. ILL. L. REV. 483, 486 ("Because the standard of review can affect the outcome of a case, one of the first issues in any appeal is the proper standard of appellate review to be applied."); W. Wendell Hall, Standards of Appellate Review in Civil Cases, 21 ST. MARY'S L.J. 865, 867-68 (1990) ("Because the appropriate standard of review will control the outcome of an appeal, appellate practitioners must consider the standard of review with the same thoughtful consideration that they give to the facts and the substantive law."); William H. Kenety, Observations on Teaching Appellate Advocacy, 45 J. LEGAL EDUC. 582, 586 (1995) ("The applicable standard of review determines the outcome of many appellate decisions."); cf. FED. R. APP. P. 28(a)(6) (requiring appellants to brief the standard of review); United States v. McConney, 728 F.2d 1195, 1199-204 (9th Cir. 1984) (en banc) (discussing standards of review at length); Michael Asimow, The Scope of Judicial Review of Decisions of California Administrative Agencies, 42 UCLA L. REV. 1157, 1189 n.112 (1995) ("As an extreme example, one practitioner told me that in many years of practice representing professional licensees . . . he had never lost an independent judgment case and never won a substantial evidence case.").
71. See, e.g., Paul R. Michel, Advocacy in the Federal Circuit, C961 A.L.I.-A.B.A. 5, 8 (1994) ("One of my main messages to you [as a circuit judge of the Court of Appeals for the Federal Circuit] is that standards of review influence dispositions in the Federal Circuit far more than many advocates realize."); see also Sally Baumler, Appellate Review Under the Bail Reform Act, 1992 U. ILL. L. REV. 483, 486 ("Because the standard of review can affect the outcome of a case, one of the first issues in any appeal is the proper standard of appellate review to be applied."); W. Wendell Hall, Standards of Appellate Review in Civil Cases, 21 ST. MARY'S L.J. 865, 867-68 (1990) ("Because the appropriate standard of review will control the outcome of an appeal, appellate practitioners must consider the standard of review with the same thoughtful consideration that they give to the facts and the substantive law."); William H. Kenety, Observations on Teaching Appellate Advocacy, 45 J. LEGAL EDUC. 582, 586 (1995) ("The applicable standard of review determines the outcome of many appellate decisions."); cf. FED. R. APP. P. 28(a)(6) (requiring appellants to brief the standard of review); United States v. McConney, 728 F.2d 1195, 1199-204 (9th Cir. 1984) (en banc) (discussing standards of review at length); Michael Asimow, The Scope of Judicial Review of Decisions of California Administrative Agencies, 42 UCLA L. REV. 1157, 1189 n.112 (1995) ("As an extreme example, one practitioner told me that in many years of practice representing professional licensees . . . he had never lost an independent judgment case and never won a substantial evidence case.").
72. Layman v. Combs, 994 F.2d 1344, 1355 (9th Cir. 1992) (Kozinski, J., dissenting in part) (discussing the nature of review under a "no rational trier of fact" standard in a similar context). Of course, this does sometimes happen. See, e.g., Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir. 1994) (holding that the movie Honey, I Shrunk the Kids did not infringe a screenplay called The Formula); Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985) (holding that the movie Coma did not infringe a screen treatment called Reincarnation, Inc.); Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984) (holding that the movie E.T. did not infringe a musical play called Lokey from Maldemar). Summary judgment in favor of the plaintiff seems rarer, but does happen occasionally. See, e.g., Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) (holding that the sculpture String of Puppies infringed a photograph called Puppies). 65. See Don's Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053-54 n.9 (11th Cir. 1987); Bartimo v. Horsemen's Benevolent & Protective Ass'n, 771 F.2d 894, 897 (5th Cir. 1985); Lewis v. Colorado Rockies Baseball Club, Ltd., 941 P.2d 266, 270-71 (Colo. 1997); see also Lindsay v. City of San Antonio, 821 F.2d 1103, 1107-08 (5th Cir. 1987) (applying independent judgment review even though the free speech claimant won below, though not discussing whether the standard should be symmetrical); Hardin v. Santa Fe Reporter, Inc., 745 F.2d 1323 (10th Cir. 1984) (same).
73. See Multimedia Publ'g Co. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 160 (4th Cir. 1993); Daily Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir. 1988); Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225, 1229 (7th Cir. 1985); Brown v. K.N.D. Corp., 529 A.2d 1292, 1295-96 (Conn. 1987); see also Don's Porta Signs, Inc. v. City of Clearwater, 485 U.S. 981, 981-82 (1988) (White, J., dissenting from denial of certiorari) (noting a split among the lower courts).
74. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).
75. See supra note 57 and accompanying text.
76. United States v. McConney, 728 F.2d 1195, 1205 (9th Cir. 1984) (en banc).
77. U.S. CONST. amend. VII.
78. See Mark S. Brodin, Accuracy, Efficiency, and Accountability in the Litigation Process - The Case for the Fact Verdict, 59 U. CIN. L. REV. 15, 32, 56-57 (1990); Colleen P. Murphy, Integrating the Constitutional Authority of Civil and Criminal Juries, 61 GEO. WASH. L. REV. 723, 749 (1993). But see Robert Dudnik, Comment, Special Verdicts: Rule 49 of the Federal Rules of Civil Procedure, 74 YALE L.J. 483, 502-03 (1965).
79. See Mark S. Brodin, Accuracy, Efficiency, and Accountability in the Litigation Process - The Case for the Fact Verdict, 59 U. CIN. L. REV. 15, 32, 56-57 (1990); Colleen P. Murphy, Integrating the Constitutional Authority of Civil and Criminal Juries, 61 GEO. WASH. L. REV. 723, 749 (1993). But see Robert Dudnik, Comment, Special Verdicts: Rule 49 of the Federal Rules of Civil Procedure, 74 YALE L.J. 483, 502-03 (1965).
80. See Mark S. Brodin, Accuracy, Efficiency, and Accountability in the Litigation Process - The Case for the Fact Verdict, 59 U. CIN. L. REV. 15, 32, 56-57 (1990); Colleen P. Murphy, Integrating the Constitutional Authority of Civil and Criminal Juries, 61 GEO. WASH. L. REV. 723, 749 (1993). But see Robert Dudnik, Comment, Special Verdicts: Rule 49 of the Federal Rules of Civil Procedure, 74 YALE L.J. 483, 502-03 (1965).
81. See, e.g., Andersen v. McCotter, 100 F.3d 723, 725 (10th Cir. 1996); Price v. Viking Penguin, Inc., 881 F.2d 1426, 1434 (8th Cir. 1989); Secrist v. Harkin, 874 F.2d 1244, 1251 (8th Cir. 1989); Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C. Cir. 1988); see also Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1293 (D.C. Cir. 1988) (applying Bose on appellate review of a summary judgment decision and stating that "[f]irst amendment concerns also affect a court's posture in reviewing the evidence presented on summary judgment"); Herbert v. Lando, 781 F.2d 298, 308 (2d Cir. 1986) (applying Bose on appellate review of a summary judgment decision); Coughlin v. Westinghouse Broad. & Cable Inc., 780 F.2d 340, 352 n.17 (3d Cir. 1986) (Becker, J., concurring); Bartimo v. Horsemen's Benevolent & Protective Ass'n, 771 F.2d 894, 895-98 (5th Cir. 1985); Hardin v. Santa Fe Reporter, Inc., 745 F.2d 1323, 1326 (10th Cir. 1984); Foretich v. American Broad. Co., Nos. Civ.A.93-2620 & Civ.A.94-0037(HHG), 1997 WL 669644 (D.D.C. Oct. 17, 1997) (applying Bose at summary judgment); Davidson v. Time Wamer, Inc., No. Civ.A.V-94-006, 1997 WL 405907, at *16 (S.D. Tex. Mar. 31, 1997); Rice v. Paladin Enters., Inc., 940 F. Supp. 836, 844 (D. Md. 1996), rev'd on other grounds, 128 F.3d 233 (4th Cir. 1997); Brown & Williamson Tobacco Corp. v. Jacobson, 644 F. Supp. 1240, 1245 (N.D. 1ll. 1986), aff'd in part and rev'd in part on other grounds, 827 F.2d 1119 (7th Cir. 1987). But see Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1571 (D.C. Cir. 1984) (holding the Bose requirement inapplicable to appellate review of a grant of summary judgment), rev'd on other, related grounds, 477 U.S. 242 (1986), and since abandoned, Liberty Lobby Inc., v. Dow Jones & Co., 838 F.2d at 1293; Coughlin v. Westinghouse Broad. & Cable, Inc., 603 F. Supp. 377, 389 (E.D. Pa. 1985) (same), aff'd on other grounds, 780 F.2d 340 (3d Cir. 1986). Some of these cases apply Bose on appellate review of a trial court's summary judgment decision. For the reasons we give in this subsection, it would make no sense to apply a different standard to the trial court's decision itself.
82. See, e.g., Crowder v. Housing Auth., 990 F.2d 586, 594 n.15 (11th Cir. 1993) (stating that the "plaintiff was entitled - under ordinary Federal Rules standards (and even more in the light of Bose's admonition to judges about mixed questions of law and fact) - to a judgment as a matter of law on most of his constitutional claims"); Masson v. New Yorker Magazine, Inc., 832 F. Supp. 1350, 1355 (N.D. Cal. 1993), aff'd, 85 F.3d 1394 (9th Cir. 1996); Guccione v. Hustler Magazine, Inc., 632 F. Supp. 313, 317 (S.D.N.Y. 1986), rev'd on other grounds, 800 F.2d 298 (2d Cir. 1986).
83. It is, of course, possible that the district court's independent review would reach one result and the court of appeals's independent review would reach another; in retrospect, then, one might say that the district court's independent review was a waste of time. But unless the substantial-similarity-of-expression test is indeed entirely indeterminate, we would assume that by and large the district court and the court of appeals would come to the same, one hopes correct, conclusion.
84. Those skeptical about this might check out any copyright casebook or treatise, and see how many of the leading cases discussed there are district court cases.
85. Bose v. Consumers Union of United States, Inc., 466 U.S. 485, 502 (1984).
86. See Waters v. Churchill, 511 U.S. 661, 678 (1994) (plurality opinion) ("[C]ases cannot be read as foreclosing an argument that they never dealt with."); Miller v. California Pac. Med. Ctr., 991 F.2d 536, 541 (9th Cir. 1993).
87. Compare Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979) (concluding that prior restraint doctrine doesn't apply to copyright and trademark cases because "[t]he first amendment is not a license to trammel on legally recognized rights in intellectual property"), with L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 29 (1st Cir. 1987) (disagreeing with this in the trademark context and stating that "the constitutional issue raised here cannot be dispensed with by simply asserting that Bean's property right need not yield to the exercise of first amendment rights").
88. Reputation is generally not a property interest for purposes of the U.S. Constitution's Due Process Clause, see Paul v. Davis, 424 U.S. 693 (1976), but it may be a property right for other purposes, see, e.g., Marrero v. City of Hialeah, 625 F.2d 499, 514 (5th Cir. 1980) (holding that Florida law recognizes business reputation as a property interest, at least to the extent that it approximates goodwill); Nossen v. Hoy, 750 F. Supp. 740, 743 (E.D. Va. 1990) (holding that "an individual holds a . . . property interest in his or her reputation" for purposes of Washington and Virginia conversion law).
89. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
90. See, e.g., San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987) (quasi-trademark); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (copyright); Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (right of publicity).
91. See Hudgens v. NLRB, 424 U.S. 507 (1976).
92. See New York Times Co. v. Sullivan, 376 U.S. at 265 ("Although [a libel suit] is a civil lawsuit between private parties, the [state] courts have applied a state rule of law . . . . It matters not that that law has been applied in a civil action . . . .").
93. Query whether privately enforced laws might actually prove to be more restrictive than government-enforced ones. See Hughes Aircraft Co. v. United States ex rel. Schumen, 117 S. Ct. 1871, 1877 (1997) (suggesting that private, self-interested enforcement of legal rules may be more zealous ana more thorough than direct government enforcement).
94. See, e.g., Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 n.11 (9th Cir.) (citing Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206 (2d Cir. 1979) (holding that trademark law is content neutral)), cert. dismissed, 118 S. Ct. 27 (1997).
95. See Turner Broad. System, Inc. v. FCC (Turner I), 512 U.S. 622, 665 (1994); Association of Community Orgs. for Reform Now v. St. Louis County, 930 F.2d 591, 595-96 (8th Cir. 1991).
96. See, e.g., Burson v. Freeman, 504 U.S. 191, 197 (1992) (plurality opinion) (holding that all content-based restrictions, even viewpoint-neutral ones, are constitutionally suspect); Boos v. Barry, 485 U.S. 312, 321 (1988) (same); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987) (same); Carey v. Brown, 447 U.S. 455, 462 n.6 (1980) (same); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537-38 (1980) (same).
97. See Twentieth-Century Fox Film Corp. v. MCA, Inc., 715 F.2d 1327 (9th Cir. 1983).
98. See supra notes 38-39 and accompanying text.
99. In fact, in obscenity and fighting-words cases, the risk of error is borne by speech that at least some Justices have claimed is of low constitutional value. Compare Young v. American Mini Theatres, Inc., 427 U.S. 50, 70-73 (1976) (plurality opinion) (suggesting that pornography is of low constitutional value), and FCC v. Pacifica Found., 438 U.S. 726, 745 (1978) (plurality opinion) (suggesting that profanity is of low constitutional value), with R.A.V. v. City of St. Paul, 505 U.S. 377, 390 n.6 (1992) (stressing that this view has never commanded a majority of the Court). Entertainment, even nonpolitical entertainment, has always been held to be of high constitutional value. See Winters v. New York, 333 U.S. 507, 510 (1948).
100. See supra note 44 and accompanying text.
101. Cf. Time Inc. v. Firestone, 424 U.S. 448 (1976) (involving a libel action based on a story about the divorce of a wealthy socialite); Cantrell v. Forest City Publ'g Co., 419 U.S. 245 (1974) (involving a false light privacy action based on a sensational crime story more akin to a modern docudrama than to political speech); Time, Inc. v. Hill, 385 U.S. 374 (1967) (same).
102. Cf. Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REV. 1321, 1329-34 (1992) (suggesting that the chilling effect of libel law on media businesses is less than one might think).
103. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).
104. See U.S. CONST, art. I, § 8, cl. 8 ("The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . .").
105. See Harper & Row, 471 U.S. at 558-60.
106. Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994).
107. Gertz v. Robert Welch, Inc., 418 U.S. 323, 400 (1974) (White, J., dissenting); see also id. (endorsing the view that "fascists' effective use of defamatory attacks on their opponents" suggests that "the law of libel . . . [may be] important for modern democratic survival" (internal quotation marks omitted)).
108. See, e.g., ANDREA DWORKIN & CATHARINE A. MACKINNON, PORNOGRAPHY AND CIVIL RIGHTS: A NEW DAY FOR WOMEN'S EQUALITY 47-48 (1988); Paul E. McGreal, Constitutional Illiteracy, 30 IND. L. REV. 693, 697 n.30 (1997) (book review) (discussing this argument).
109. See, e.g., ANDREA DWORKIN & CATHARINE A. MACKINNON, PORNOGRAPHY AND CIVIL RIGHTS: A NEW DAY FOR WOMEN'S EQUALITY 47-48 (1988); Paul E. McGreal, Constitutional Illiteracy, 30 IND. L. REV. 693, 697 n.30 (1997) (book review) (discussing this argument).
110. See Kunz v. New York, 340 U.S. 290, 302 (1951) (Jackson, J., dissenting).
111. See generally Eugene Volokh, Freedom of Speech and the Constitutional Tension Method, 3 U. CHI. ROUNDTABLE 223 (1996).
112. U.S. CONST, art I, § 8, cl. 8.
113. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985); cf. Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 849 (11th Cir. 1990) ("Since the Copyright Act is the congressional implementation of a constitutional directive to encourage inventors by protecting their exclusive rights in their discoveries, copyright interests also must be guarded under the Constitution, and injunctive relief is a common judicial response to infringement of a valid copyright [despite the normal First Amendment due process rule against prior restraints]."); 1 RODNEY A. SMOLLA, SMOLLA AND NIMMER ON FREEDOM OF SPEECH § 15:58, at 15-88 (3d ed. 1996) (stating that "the fact that copyright protection is itself a value of constitutional dimension, vindicating the directive of the Constitution's Copyright Clause" justifies the issuance of injunctions).
114. See, e.g., Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965) (striking down a restriction on mailing of communist advocacy); see also, e.g., United States v. Grace, 461 U.S. 171, 179-80 (1983) (striking down on First Amendment grounds a law enacted pursuant to the Federal District Clause power); Alex Kozinski & Eugene Volokh, A Penumbra Too Far, 106 HARV. L. REV. 1639, 1649-50 (1993).
115. See, e.g., Time Warner Entertainment Co. v. Does, 876 F. Supp. 407, 414 (E.D.N.Y. 1994) (holding that ex parte seizure of supposedly infringing materials, though authorized by the Copyright Act, was impermissible under the Fourth Amendment).
116. Cf. Patton v. United States, 281 U.S. 276, 298 (1930) ("The first ten amendments and the original Constitution were substantially contemporaneous and should be construed in pari materia.").
117. Harper & Row, 471 U.S. at 558.
118. But see Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 923 F. Supp. 1231, 1258 (N.D. Cal. 1995) (concluding that Harper & Row implicitly validated all the provisions of the Copyright Act, including those providing for preliminary injunctions, even though preliminary injunctions against speech are generally prohibited by the prior restraint doctrine).
119. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 22 (1990).
120. See, e.g., New York v. Ferber, 458 U.S. 747, 949 (1982).
121. See Bose v. Consumers Union of United States, Inc., 466 U.S. 485, 504-05 (1984).
122. Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).
123. 630 F.2d 905 (2d Cir. 1980).
124. Id. at 917 (quoting Couleur Int'l Ltd. v. Opulent Fabrics Inc., 330 F. Supp. 152, 153 (S.D.N.Y. 1971)).
125. Id.
126. Id. at 916.
127. See id.; cf. Past Pluto Prods. Corp. v. Dana, 627 F. Supp. 1435 (S.D.N.Y. 1986) (similarly relying on several cases in determining copyrightability, as opposed to substantial similarity).
128. 712 F. Supp. 353 (S.D.N.Y. 1989).
129. 865 F. Supp. 1047 (S.D.N.Y. 1994).
130. 945 F.2d 509 (2d Cir. 1991).
131. See id. at 515.
132. 736 F.2d 859 (2d Cir. 1984).
133. 937 F.2d 700 (2d Cir. 1991).
134. 499 U.S. 340 (1991).
135. See Eckes, 736 F.2d at 863.
136. See Key Publications, 945 F.2d at 515-16.
137. See Kregos, 937 F.2d at 702, 709-10.
138. 899 F.2d 1537 (7th Cir. 1990).
139. Id. at 1540.
140. Id.
141. Id. at 1541.
142. 618 F.2d 972 (2d Cir. 1980).
143. 181 F.2d 664 (7th Cir. 1950).
144. See, e.g., Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) (engaging in an extensive comparison with Folio Impressions, Inc. v. Byer California, 937 F.2d 759 (2d Cir. 1991)); Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co., 509 F.2d 64 (2d Cir. 1974) (drawing on Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971)); Uneeda Doll Co. v. Regent Baby Prods. Corp., 355 F. Supp. 438 (E.D.N.Y. 1972) (drawing on Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966)).
145. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 502-04 (1984).
146. Id. at 503.
147. Id. at 502.
148. Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994).
149. Telephone Interview with Blaine Greenberg, Partner, Troop, Meisinger, Steuber and Pasich, Los Angeles, Cal. (Apr. 10, 1997); Telephone Interview with Tom Hemnes, Partner, Foley, Hoag & Eliot, Boston Mass (Apr. 21, 1997); Telephone Interview with David Nimmer, Of Counsel, Irell & Manella, Los Angeles, Ca. (Mar. 5, 1997); Telephone Interview with Peter Nolan, Assistant General Counsel, Walt Disney Company, Los Angeles, Cal. (Mar. 11, 1997); Telephone Interview with Bob Osterberg, Of Counsel Abelman, Frayne and Schwab, New York, N.Y. (Mar. 25, 1997); Telephone Interview with Herb Schwartz, Partner, Fish & Neave, New York, N.Y. (Apr. 16, 1997). In the succeeding discussion, we provide a reference only if it is unclear from the text to which interview we are referring.
150. For the full questionnaire, see infra Appendix.
151. See infra Appendix, Question 1.
152. Telephone Interview with Tom Hemnes, supra note 139; Telephone Interview with David Nimmer, supra note 139; Telephone Interview with Peter Nolan, supra note 139.
153. Telephone Interview with Bob Osterberg, supra note 139; Telephone Interview with Hero Schwartz, supra note 139.
154. See infra Appendix, Question 2.
155. See infra Appendix, Question 4. Greenberg had the interesting suggestion of a database that would not only list appellate decisions by area, but would also provide side-by-side comparisons of the material being litigated.
156. Schwartz's remark was an allusion to Justice Stewart's famous statement in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring), that "I shall not today attempt further to define [hardcore pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . . ."
157. See infra Appendix, Question 5.
158. See infra Appendix, Question 6.
159. As he put it, "Trial judges are such strong personalities that they don't care what their brethren will do. It wouldn't surprise me if some cases would go ten different ways depending on who you draw. . . . But if the case can go to the Ninth Circuit, and if the circuit is consistent, I may anticipate winning at the appellate level."
160. See infra Appendix, Question 7.
161. See infra Appendix, Question 8.
162. See infra Appendix, Question 11.
163. See infra Appendix, Question 10.
164. See infra Appendix, Question 9.
165. Greenberg, for example, said that "if there is de novo review, you've got a much better chance of winning. If there is de novo review, we'd be more likely to appeal and more likely to appeal, and more likely to be interested in what the court of appeals had done on these cases." Nimmer said he "should be" influenced by the standard of review: "If the standard is de novo, and I think it's a good case for my client, I should appeal. If it clear error and the judge preserved the record, then I'm sunk."
166. Schwartz denied that the standard of review would have an effect. Nolan
167. 116 S.O. 1657 (1996).
168. Id. at 1661 (citations omitted).
169. Id. at 1662-63 (citations omitted).
170. 516 U.S. 99 (1995).
171. 384 U.S. 436 (1966).
172. Thompson, 516 U.S. at 112 n.11.
173. Id. at 113 n.13.
174. Id. at 114.
175. Id. at 113 n.13.
176. See, for example, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990), which dealt with the question of whether a lawyer engaged in reasonable investigation for purposes of Rule 11 of the Federal Rules of Civil Procedure; and Pierce v. Underwood, 487 U.S. 552 (1988), which dealt with whether the government's position in litigation was substantially justified for purposes of determining Equal Access to Justice Act fee awards. In both cases, the Court held that deferential review was required because the tac patterns involved ""'multifarious, fleeting, special, narrow facts that utterly resist generalization'"" and that independent appellate review could not "clarify the underlying principles of law." Cooter & Gell 496 U.S. at 404-05 (quoting Pierce, 487 U.S. at 560-62 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1965))). Unfortunately, the Court has not explained exactly why it treated Ornelas and Thompson differently from Cooter & Gell and Pierce; the best explanation seems to be that the latter cases involved nonconstitutional matters that were peripheral to the merits.
177. See Miller, 474 U.S. at 114, 116-17 (citing cases that mandate deferential review in certain habeas corpus contexts).
178. Of course, decisions about whether the defendant used the plaintiff's work or whether the defendant's work is an entirely independent creation often turn on credibility judgments. This, however, is an analytically separate inquiry from the decision whether a plaintiff's expression is substantially similar to a defendant's expression.
179. Ornelas v. United States, 116 S. Ct. 1657, 1661 (1996) (quoting Illinois v. Gates, 462 U.S. 232 (1983)).
180. See Concord Fabrics, Inc. v. Marcus Bros. Textile Corp., 409 F.2d 1315, 1316 (2d Cir. 1969).
181. Compare, e.g., Eckes v. Card Prices Update, 736 F.2d 859 (2d Cir. 1984) (providing, in a factual compilation case, fairly detailed guidance on drawing the idea-expression line), discussed supra text accompanying notes 122-127, and Key Publications, Inc. v. Chinatown Today Publ'g Enters., 945 F.2d 509 (2d Cir. 1991) (same), discussed supra text accompanying notes 120-127, with Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485 (9th Cir. 1984) (providing much less guidance on the idea-expression line), Cooling Sys. & Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485 (9th Cir. 1985) (same), and Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001 (9th Cir. 1985) (same). In addition, contrast Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980), which goes through a rather detailed and reasoned comparison of the cases, with Williams v. Kaag Manufacturers, Inc., 338 F.2d 949 (9th Cir. 1964), which concludes only that "an ordinary reasonable person, here represented in the person of the trial judge," found a lack of substantial similarity in deferring to the lower court's finding under a clear error standard.
182. See. e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985); New Era Publications v. Carol Publ'g Group, 904 F.2d 152, 155 (2d Cir. 1990); Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1175 (5th Cir. 1980); Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1434 (6th Cir. 1992), rev'd on other grounds, 510 U.S. 569 (1994); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992); Pacific & S. Co. v. Duncan, 744 F.2d 1490, 1495 n.8 (11th Cir. 1984).
183. Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1255 (2d Cir. 1986); see also Triangle Publications, 626 F.2d at 1174.
184. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 596 (1994) (Kennedy, J., concurring) (citations omitted).
185. 464 U.S. 417 (1984).
186. 510 U.S. 569 (1994); see also Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 112-17 (2d Cir. 1998) (comparing and contrasting facts with the facts of Campbell).
187. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 502 (1984).
188. Cf. Martin E. Lee, Free Speech in Moral Joust with Hate Speech, NAT'L CATH. REP., Oct. 4, 1996, at 17, 17 (reviewing THE PRICE WE PAY: THE CASE AGAINST RACIST SPEECH, HATE PROPAGANDA AND PORNOGRAPHY (Laura Lederer & Richard Delgado eds., 1995)) ("Noting routine exceptions to free speech absolutism (copyright, trademark and such) that hew to business interests, the essays cite studies that document the heavy toll inflicted by the multibillion dollar porn industry, as it profits from a kind of hate speech that degrades women and children. . . . This book provides a sober rejoinder to cliché-ridden thinking by highlighting the profound power imbalance and social inequities that dim the luster of the First Amendment.").
189. Cf. Martin E. Lee, Free Speech in Moral Joust with Hate Speech, NAT'L CATH. REP., Oct. 4, 1996, at 17, 17 (reviewing THE PRICE WE PAY: THE CASE AGAINST RACIST SPEECH, HATE PROPAGANDA AND PORNOGRAPHY (Laura Lederer & Richard Delgado eds., 1995)) ("Noting routine exceptions to free speech absolutism (copyright, trademark and such) that hew to business interests, the essays cite studies that document the heavy toll inflicted by the multibillion dollar porn industry, as it profits from a kind of hate speech that degrades women and children. . . . This book provides a sober rejoinder to cliché-ridden thinking by highlighting the profound power imbalance and social inequities that dim the luster of the First Amendment.").
190. See, e.g., Richard Delgado & Jean Stefancic, Ten Arguments Against Hate-Speech Regulation: How Valid?, 23 N. KY. L. REV. 475, 484 (1996) ("Powerful actors like government agencies, the writers' lobby, industries, and so on have always been successful at coining free speech 'exceptions' to suit their interest - copyright, false advertising, words of threat, defamation, libel, plagiarism, words of monopoly, and many others. But the strength of the interest behind these exceptions seems no less than that of a black undergraduate subjected to vicious abuse while walking late at night on campus."); Richard Delgado & David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation, 82 CAL. L. REV. 871, 892 (1994) ("Perhaps . . . in twenty or fifty years we will look upon hate speech rules with the same equanimity with which we now view defamation, forgery, obscenity, copyright, and dozens of other exceptions to the free speech principle, and wonder why in the late twentieth century we resisted them so strongly.").
191. See, e.g., Richard Delgado & Jean Stefancic, Ten Arguments Against Hate-Speech Regulation: How Valid?, 23 N. KY. L. REV. 475, 484 (1996) ("Powerful actors like government agencies, the writers' lobby, industries, and so on have always been successful at coining free speech 'exceptions' to suit their interest - copyright, false advertising, words of threat, defamation, libel, plagiarism, words of monopoly, and many others. But the strength of the interest behind these exceptions seems no less than that of a black undergraduate subjected to vicious abuse while walking late at night on campus."); Richard Delgado & David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation, 82 CAL. L. REV. 871, 892 (1994) ("Perhaps . . . in twenty or fifty years we will look upon hate speech rules with the same equanimity with which we now view defamation, forgery, obscenity, copyright, and dozens of other exceptions to the free speech principle, and wonder why in the late twentieth century we resisted them so strongly.").
192. We are indebted to Doug Laycock for this point.
193. See United States v. McConney, 728 F.2d 1195, 1201 n.7 (9th Cir. 1984) (en banc) ("It can hardly be disputed that application of a non-deferential standard of review requires a greater investment of appellate resources than does application of the clearly erroneous standard. Appellate courts could do their work more quickly if they applied the clearly erroneous standard in most circumstances, because the courts then need only determine if the lower court's decision is a reasonable one, not substitute their own judgment for that of the trial judge.").
194. We suspect that plaintiffs and defendants will differ more in their estimates of success under independent review than in their estimates of success under deferential review. If this is so, then settlement will be less likely. See FED. R. Civ. P. 52(a) advisory committee note to 1985 amendments (stating that independent appellate review "tend[s] to . . . multiply appeals by encouraging appellate retrial of some factual issues").
195. Speiser v. Randall, 357 U.S. 513, 526 (1958).
196. Frequent communication from Vladimir Volokh to Eugene Volokh.
197. Cf., e.g., N.Y. CONST, art. VII, § 8 (1821) ("In all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted . . . .").
198. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
199. See, e.g., Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 60 (1971) (White, J., concurring in the judgment).
200. Gertz v. Robert Welch, Inc., 418 U.S. 323, 390 (1974) (White, J., dissenting).
201. See id.
202. Id. at 394 & n.31.
203. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 519 (1984) (Rehnquist, J., dissenting).
204. Bates v. State Bar, 433 U.S. 350, 380 (1977) ("First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute."); see also, e.g., NAACP v. Button, 371 U.S. 415, 433 (1963) ("These freedoms are delicate and vulnerable . . . . The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.").
205. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963), quoted in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230 (1990), Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 561 (1975), and Blount v. Rizzi, 400 U.S. 410, 416-17 (1971). Another alternative, proposed by Professor Monaghan, is for courts to use independent review until they believe they have refined the test as much as they can and then shift to reviewing only for clear error. See Monaghan, supra note 29, at 275-76. We are not sure this approach will ultimately work, because it's hard for courts to tell when enough is enough. The standard of review will essentially be up in the air for a long time, with the appellant in each case insisting that there is more refinement possible and thus asking for de novo review, and the appellee arguing that it is now time to switch to clear error review. Still, we agree with Professor Monaghan that Bose might bear some reexamination.
206. See, e.g., Gregg v. Georgia, 428 U.S. 153, 188 (1976) (plurality opinion).
207. See supra note 56 and accompanying text.
208. See Bose, 466 U.S. at 508 n.27.
209. See id.
210. Perhaps the manufacturers also deserve clearer guidelines than the law currently provides; nonetheless, while a considerable amount of uncertainty might have to be tolerated for the manufacturers, less should be tolerated for speakers.
211. Speiser v. Randall, 357 U.S. 513, 526 (1958).
212. See Vance v. Universal Amusement Co., 445 U.S. 308, 316-17 (1980).
213. See id. (suggesting that the answer to this is "yes," at least for preliminary injunctions in general).
214. Cf. Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. (forthcoming Nov. 1998) (arguing that preliminary injunctions in copyright cases are often, but not always, unconstitutional).
215. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). Strict liability might be available in private concern libel cases, though that question is unsettled. See Eugene Volokh, Freedom of Speech in Cyberspace from the Listener's Perspective, 1996 U. CHI. LEGAL F. 377, 402.
216. See Manual Enters., Inc. v. Day, 370 U.S. 478 (1962) (civil cases); Smith v. California, 361 U.S. 147 (1959) (criminal cases).
217. See New York v. Ferber, 458 U.S. 747, 765 (1982). Of course, some statutes allow any mistake as a defense, even an unreasonable one. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) (interpreting the Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252 (1988 ed. & Supp. V)). It is unclear, though, whether any mens rea beyond negligence is constitutionally required.
218. Cf. De Acosta v. Brown, 146 F.2d 408, 412 (2d Cir. 1944) (Hand, J., dissenting) (arguing that holding a magazine publisher strictly liable for infringement by a contributing author "is likely to prove an appreciable and very undesirable burden upon the freedom of the press"); Edward M. Di Cato, Operator Liability Associated with Maintaining a Computer Bulletin Board, 4 SOFTWARE L.J. 147, 155-56 (1990) (discussing this question); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1844 n.130 (1995) (briefly touching on this question).
219. Cf. De Acosta v. Brown, 146 F.2d 408, 412 (2d Cir. 1944) (Hand, J., dissenting) (arguing that holding a magazine publisher strictly liable for infringement by a contributing author "is likely to prove an appreciable and very undesirable burden upon the freedom of the press"); Edward M. Di Cato, Operator Liability Associated with Maintaining a Computer Bulletin Board, 4 SOFTWARE L.J. 147, 155-56 (1990) (discussing this question); Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1844 n.130 (1995) (briefly touching on this question).
220. See Gertz, 418 U.S. at 348-50.
221. See 17 U.S.C. § 504(a)(2), (c) (1994). Statutory damages are conventionally seen more as presumed damages than punitive, but some cases suggest that they also have a punitive component. See, e.g., Cass County Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 643 (8th Cir. 1996) (stating that "it is plain that another role has emerged for statutory damages in copyright infringement cases: that of a punitive sanction on infringers" akin to "the award of punitive damages"); Evans Newton Inc. v. Chicago Sys. Software, 793 F.2d 889, 897 (7th Cir. 1986) ("Under copyright law, punitive damages could come from an award of statutory damages for willful infringement."); Video Cafe, Inc. v. De Tal, 961 F. Supp. 23, 26 (D.P.R. 1997) ("The Court would also note that statutory damages awards under § 504(c) serve both compensatory and punitive purposes.").
222. See 17 U.S.C. § 504(c).
223. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775-77 (1986).
224. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985) (describing "the latitude for scholarship and comment traditionally afforded by fair use" as a "First Amendment protection[]").
225. Cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (holding, without considering the First Amendment, that fair use is an affirmative defense and that the burden of proving it is on the defendant).
226. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974).
227. See, e.g., People v. Mitchell Brothers' Santa Ana Theater, 180 Cal. Rptr. 728, 730 (Ct. App. 1982).
228. See Yen, supra note 36, at 434-35 (raising this question in passing).
229. See supra text accompanying notes 173-178.
230. MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE NINTH CIRCUIT § 17.4.1 (1997).
231. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 593 (1994).
232. See id. at 586.
233. Id. at 588-89.
234. Cf. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (condemning vague laws for "impermissibly delegat[ing] basic policy matters to . . . juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application"); Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966) (holding that rules that are "so vague and standardless that [they] leave[] . . . jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case," even when all that's at stake is a money judgment, violate due process).
235. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).
236. Cf. Gregory v. City of Chicago, 394 U.S. 111, 122-24 (1969) (Black, J., concurring) (arguing that a rule was unconstitutionally vague, despite clarifying and narrowing constructions developed by appellate courts, when the jury instructions were based on the vague statutory language rather than on the clarifying construction); id. at 112-13 (majority opinion) (seeming to take a similar view); Walton v. Arizona, 497 U.S. 639, 653 (1990) (holding that, in the Eighth Amendment context, where the vagueness doctrine is as toothy as in the free speech context, it is essential that the jurors be properly instructed regarding all facets of the sentencing process," and stating that "[i]t is not enough to instruct the jury in the bare terms of [a test] that is unconstitutionally vague on its face").
237. This is just our suspicion. We hope that others will investigate the matter more fully.
238. Stare decisis does not prevent courts from adopting this approach, even if in the past they have reviewed substantial similarity findings only for clear error. See supra Section I.F.