Copyright History Shyam Balganesh University of Pennsylvania Law School The Questionable Origins of the Copyright Infringement Analysis Jerome Frank’s infamous/canonical © infringement test from Arnstein v. Porter, influential across the country. Step 1: actual copying, dissection allowed, expert testimony allowed, question of fact. Step 2: improper appropriation: was the taking enough to be wrongful? Lay observer is the standard, subjective/intuitive; also a question of fact for the jury. A new account based on Frank’s papers. By 1946, Frank had a developed judicial philosophy. Had disdain for the jury in general; so why trust the jury here? District court’s opinion seems to rub Frank the wrong way—complains about heavy workload and says he won’t analyze Arnstein’s remaining arguments. The Second Circuit was at the time the most prominent court in the country—a lot of New Deal academics while the…
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