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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
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
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


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