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

16 Chi.-Kent J. Intell. Prop. 85 (2016)
Abuse of Supreme Court Precedent: The Historic Kinship

handle is hein.journals/jointpro16 and id is 85 raw text is: ABUSE OF SUPREME COURT PRECEDENT: THE HISTORIC KINSHIP DAVID W. BARNES1 ABSTRACT In Sony Corp. ofAmerica v. Universal City Studios, the Supreme Court applied a doctrine formulated for patent law to an issue arising in copyright law. The Court supplied a rationale for doing so by identifying a historic kinship between patent and copyright law based on fundamental goals of intellectual property law. The Court considered how the rationale applied in the particular factual context involved. The Court cautioned that the propriety of extending a doctrine developed in one intellectual property regime to another depends on the particular legal issue involved. Despite the importance of ensuring that new rules are consistent with the underlying rationale for intellectual property law and the Supreme Court's cautionary language, lower courts regularly quote the historic kinship as a justification for applying rules from one regime to another. This article surveys all of the cases referring to Sony's historic kinship and finds that most lower courts abuse the precedent by failing to consider the rationale and heed the caution. The risk created by this misapplication of Supreme Court precedent is that new intellectual property rules may be inconsistent with the underlying goals or inconsistent with other doctrine. 1. Distinguished Research Professor of Law, Seton Hall University School of Law. 85

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