About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

55 J. Copyright Soc'y U.S.A. 125 (2007-2008)
Exploding the Inverse Ratio Rule

handle is hein.journals/jocoso55 and id is 153 raw text is: EXPLODING THE INVERSE RATIO RULE by DAVID ARONOFF * INTRODUCTION History abounds with examples of pseudoscientific notions that have enjoyed substantial public acceptance, notwithstanding an absence of veri- fiable support. For example, phrenology has been used to explain human intelligence, astrology has been used to predict future events, and crop circles have been pointed to as evidence of alien visitors. Many such pseu- doscientific principles are enduringly popular. However, few would con- tend that the legal rules underlying copyright infringement actions should be based on such empirically questionable theories. For this reason, the continuing vitality in copyright law of the so- called Inverse Ratio Rule (the IRR) - at least within the Ninth Cir- cuit1 - is both puzzling and problematic. Put most simply, the IRR holds that in a copyright infringement case, where a high degree of access by the defendant to the plaintiff's allegedly infringed work is shown, a lower de- gree of similarity will be required to establish infringement. Like many other pseudoscientific principles, the IRR seems to have some superficial appeal: After all, it seems logical that a diamond thief who readily has access to a burglared jewelry store is more likely to have committed the crime than a suspect who was out of the country at the time of the theft. However, as with all pseudoscientific principles, the IRR does not fare well under closer scrutiny. In the context of a diamond heist, does it really follow that a suspect who lives around the corner from the scene of a crime is more likely to have been the culprit than a suspect who lives five miles away? Even if that problematic question is answered in the affirma- tive, does it follow that the state's burden to prove the elements of the crime should be lowered by a ratio based on the proximity (i.e., degree *David Aronoff is a partner at Spillane Shaeffer Aronoff Bandlow LLP in Los Angeles and regularly litigates copyright, trademark, right of publicity, entertain- ment and media matters. He presently serves on the Board of Trustees of the Los Angeles Copyright Society, and served as Chairman of the Intellectual Property and Entertainment Law Section of the Los Angeles County Bar Association in 2004-05. 1 This Article primarily focuses on judicial decisions within the Ninth Circuit. However, the issues and problems discussed herein are applicable to other circuits as well. Exploding the Inverse Ratio Rule 125

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most