A lot of crafters and artists do not have the luxury of hiring an attorney if they have questions about copyright. As such, Google is probably the first place they go to find the information they need. But, DIY copyright research is not without its pitfalls. While Google is an immensely helpful tool, there are some DIY copyright research best practices we should employ.
The first one is knowing what circuit you are in and whether cases you find are binding law in your circuit. Why is this important? Because, even if you never end up in a court of law over a copyright claim, legally protecting your creative assets requires you to fully understand the legality of whatever issue you are researching. Similarly, if someone has accused you of violating copyright, you also want to have a grasp of the full legal landscape. Laws are not stagnant; how they are applied may shift in subtle or not-so-subtle ways after a court has interpreted it.
The law relevant to this particular topic is the Copyright Act which is a federal law grounded in the Constitution. This means this same law applies to everyone in the United States, as distinct from state laws that only apply to the residents of that state. With very few exceptions, copyright claims are exclusively heard in federal court. This means that, in the course of researching copyright, the cases you find will be federal cases. But, for our purposes, all federal cases are not created equal. Some cases are binding precedent for your region and some cases are just persuasive. If a case is binding, it has to be applied in a given situation. If a case is persuasive, it can be used to buttress an argument but it does not have to be followed.
So, how do you determine whether a case is binding or not? You have to know your circuit. The federal court system is broken into eleven different circuits as shown in the map below. The District of Columbia and certain federal agencies also have their own circuits. Within each circuit there is a court hierarchy. At the bottom are the district courts, which is where any copyright lawsuits would be filed. District courts decide all preliminary matters and also hold trials. If a losing party decides it does not agree with the final decision of a district court, the next court in the hierarchy is the Court of Appeals where, well, appeals are heard. Above the courts of appeal is the United States Supreme Court, the court of last resort in the federal system.
The decisions of higher courts generally are binding on lower courts but let's break that down a bit. Decisions of the Supreme Court on constitutional and federal law are binding on all of us, no matter what circuit we are in. But, once we get to the Courts of Appeal, decisions are only binding within the same circuit.
So, take me for instance. I live in southern Washington state which is within the 9th Circuit. The federal courts governing my area are the Western District of Washington (the lowest federal court), the 9th Circuit Court of Appeals and the Supreme Court. If I am doing some research and want to know if a case I have found is binding or persuasive, I check whether it is from the Supreme Court, the 9th Circuit Court of Appeals or the Western District of Washington. If my case is from the 2nd Circuit, it is not binding law in the 9th Circuit. A case from the Central District of California is not binding law in Washington State.
So, what does this mean if, for example, you have found the perfect case that is so helpful for whatever issue you are researching but you determine it is from another circuit? Or, what if no court in your circuit has issued a decision on a particular issue? Does that mean you cannot rely on the case? No, you can sometimes still use the case but it is a sign to proceed with caution. If your circuit does not have precedent on an issue, that is one thing. But, if your circuit has precedent and it conflicts with the case you found (which is called a "circuit split"), you may not be on solid legal footing by relying on that case.
Caution and attention to case forum details are important research tools!
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