Last week, William Patry’s Copyright Blog tackled something that’s bugged me for a long time: substantial similarity.
Well, the blog didn’t so much tackle the subject as point out something that all copyright lawyers know — or that they should know: Substantial similarity analysis is like the Emperor. It has no clothes. There is no statutory mandate for substantial similarity analysis. There is no coherent doctrinal mechanism for conducting a substantial similarity analysis. And there is no compelling policy justification for substantial similarity analysis that is independent, in any meaningful way, from the policy justification for imposing liability for copyright liability in the first place.
So I’m delighted to see the post raise some questions that have puzzled me, and to suggest that we might look for solutions in places I’ve started to search:
I understand theoretically why it should be done, and perhaps how. But, is it really possible and if so how can be validate the exercise? Should such copyright determinations take into account social science research into how people perceive simlarities and dissimilarities? Do people generally perceive similarities more readily or dissimilarities? Are people influenced by how long they look at the items? What if they are told to focus on or not to focus on certain things? Are there some types of similarities/dissimilarities that people perceive more easily than others? And, finally (or first) what does it mean to even say something is “similar”?
Bill Patry is right to join the small chorus of us who have been looking for strategies in the domains of “cognitive science.” Note, though, that “cognitive science” is a collection of disciplines as much as it is a discipline all its own, and anyone who dives into this ocean of research will need to come up for air from time to time. There’s a lot of material there, and it’s not well-integrated even before you think about applying it to law. Bill Patry includes a link to a psychologist at Texas who is researching the cognitive processes involved in determining similarity and categorization. I’ve gotten intrigued by a different researcher and his lab: Edwin Hutchins at UCSD and his work on distributed cognition. I explore the role of social processes and their relationship to cognition and copyright in A Pattern -Oriented Approach to Fair Use.