Publication Title

Harvard Journal of Law and Technology

Document Type



This Article describes two dimensions of largely unacknowledged and unconstrained realms of interpretive complexity that judges face. First, judges make decisions about sources of interpretive authority somewhere on an axis, one end of which would vest interpretive authority entirely in the text and the other entirely in the context, around or beyond the text. This Article terms this spectrum of judicial decision-making the Text/Context axis. Second, judges must decide what interpretive mode to use in approaching the text, and here they make decisions somewhere along an axis where one end represents analysis or exegesis of the works and the other end represents judicial intuition. This Article terms this second realm of copyright’s interpretive complexity the Analysis/Intuition axis.

These two axes help explain copyright’s interpretive choice regime. Along the Analysis/Intuition axis, judges must decide whether (1) to offer affirmative analysis of the text of the works at issue, explaining their reasoning but perhaps constraining their future decision-making and leaving them vulnerable to greater reversal rates, or (2) to offer conclusions about the works at issue, justified by what appears to be little more than judicial intuition. Along the Text/Context axis, when considering potentially copyrightable works, whether judging them through analysis or through intuition, judges must decide (1) whether to focus on the work itself (a text-based approach) or (2) to consider the context around the work (a contextualist approach). These interpretive choices may also dictate whether questions may be resolved by the judge as a matter of law or whether they require further consideration by a jury or a judge acting as the trier of fact.

Furthermore, interpretive choice may determine what level of constraint a judge will impose on her own analysis to ensure its legitimacy: Is judicial fiat (or gestalt) sufficient, or must the judge “show her work,” that is, “give reasons”? This Article will demonstrate that in how they choose to interpret works, even though these choices rarely surface as such. This Article recasts interpretive choices as integral to copyright law: They make the law operate properly. Copyright adjudication requires judges to adopt interpretive methodologies, whether or not they address them explicitly.

Interpretive choices can offer some explanation for the great divergence in outcomes and reasoning seen in infringement analysis more generally. Recognizing its importance can improve the cogency of copyright doctrine throughout litigation. Here, this Article makes no claims about the indeterminacy of textual meaning, or what we might term the “semiotic indeterminacy thesis” which interested early law-and-literature scholars.

Instead, this Article aspires to show that something else important and little remarked upon is taking place. Judges make difficult interpretive choices that can be helpfully viewed as taking place along two predictable axes of complexity. The actual range of interpretive methods used by judges contains many variations, but for conceptual clarity distilling those choices into two pairings—Analytical/Intuitive and Text/Context—helps illuminate the impact the interpretive method has on the outcome of a case.

Accordingly, this Article seeks to make several contributions. First, it offers a descriptive theory of copyright’s interpretive practices by showing multiple points at which judges do, and indeed must, make complex but often unacknowledged interpretive decisions, along two different but interrelated axes. Second, it shows that judges make legally meaningful, but inconsistent, decisions about interpretive methods in copyright cases.

The Article calls for greater methodological transparency, and it offers a few modest prescriptions about which interpretive methods might be best adopted, by whom, when, and why. It proposes that judges in copyright cases should be more inclined toward analysis than intuition and prioritize text over context, as default settings. Copyright law could benefit from a rule structured analytic system, a set of interpretive defaults that (1) prioritize analysis over intuition and (2) focus first on the work but then allow a reasonable “escape route,” or methodological second tier, to soften the possible harshness of the rule-based approach. A turn to analysis and an emphasis on text could constrain judicial discretion and steer judges toward more transparent reasoning. In turn, these interpretive defaults could help produce greater consistency and fairness.

Part II shows how interpretive choices are built into copyright law along two interrelated axes of complexity and provides examples of cases in which judges make inconsistent choices along these interpretive axes in ways that can affect outcomes. It shows that there is little coherence or consistency in judicial method selection and that there is confusion about what might even count as a method.

Part III argues against the reigning view that so-called nontechnical copyright cases are somehow interpretively simpler than technical ones, such as software cases. Part IV proposes a turn toward analysis and away from intuitionism, along with greater judicial emphasis on texts over context. Part V concludes.



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