Clark Asay, ‘An Empirical Study of Copyright’s Substantial Similarity Test’, 13 UC Irvine Law Review (forthcoming, 2022), available at SSRN. Far fewer empirical studies in the intellectual property field have focused on copyrights than on patents. Each new entrant to this small field is, however, welcome. The latest offering by Clark Asay reports on his study of a random sample of 1005 judicial opinions assessing substantial similarity infringement analyses in 974 cases decided between 1978-2020. He coded for subject matters, rights in dispute, procedural postures, subtests, expert evidence, whether courts discussed copyright limitations, sources of authority, and outcomes. Those of us who teach copyright law have long had the impression that substantial similarity analyses in the opinions we teach are a hot mess. Asay has now provided empirical evidence that this impression is mostly quite accurate … (more)
[Pamela Samuelson, JOTWELL, 31 May]
First posted 2022-06-01 11:30:08
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