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Abstract

Copyright law establishes an author’s right to secure exclusive rights in their writings. If an author finds an infringing work, the author can file a copyright infringement suit to protect their original writings and stop an infringer from misappropriating their work. In analyzing copyright infringement, however, some legal theories, such as the Inverse Ratio Rule, mischaracterize the crux of the copyright infringement inquiry and complicate the infringement inquiry for judges and juries—adversely affecting authors. Using indie musicians as an exemplary embodiment of modern copyright jurisprudence’s adverse effects, indie musicians who merely have access to a more famous musician’s music may be unfairly prejudiced under current legal theories.

To eliminate unfair prejudice for indie musicians and other similar creatives, this note advocates for the modernization of copyright infringement inquiries in two contexts: (1) abrogating rules subverting intuitive concepts into mathematical formulas to ensure all copyright owners are equally afforded protections; and (2) implementing judicial tools to clarify copyright adjudication, given factfinders often misunderstand copyright precedent.

This note also contains several proposals to ameliorate copyright infringement adjudication. First, an administrative copyright tribunal, analogous to the PTAB and the TTAB, should be created to opine solely on issues of access and similarity, allowing district courts the ability to stay a case pending the administrative copyright tribunal’s opinion on access and similarity. Also, although plaintiffs usually request a jury trial, having a judge (an administrative law judge from a copyright tribunal or a district court judge) opine on access and probative similarity does not implicate 7th amendment issues because juries would nevertheless retain their purpose to decide unlawful appropriation of the original work, which is the essence of the infringement analysis. Second, using special masters or technical advisors in copyright cases will increase efficiency and clarity due to their copyright expertise, achieving results similar to special masters and technical advisors in patent infringement adjudication. Finally, conferring appellate copyright infringement jurisdiction to the Federal Circuit may remove confusion for judges and juries by homogenizing copyright jurisprudence with a specialized court.

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