INVENTING AROUND COPYRIGHT

ABSTRACT-Patent law has long harbored the concept of "inventing around," under which competitors to a patent holder may be expected, and even encouraged, to design their technologies so as to skirt the boundaries defined by patent claims. It has become increasingly clear that, for better or for worse, copyright also fosters inventing around. Copyright is not based on written claims, but because copyright links exclusive rights to technological actions such as reproduction, distribution, or transmission, the language of the copyright statute, and judicial readings of the statute, create boundaries around which potential infringers may technologically navigate. For example, the Aereo case recently decided by the Supreme Court involves technology that was explicitly designed to conform to noninfringing definitions of private transmission found in previous court decisions. But in copyright, unlike patent, there has been little analysis of the tendency to foster alternative technological development. This Essay draws upon previous analyses of inventing around in patent law to assess the benefits and detriments of inventing around in copyright.INTRODUCTIONPatent law has long harbored the concept of "inventing around," under which competitors to a patent holder may be expected, and even encouraged, to design their technologies so as to skirt the boundaries defined by patent claims. It has become increasingly clear that, for better or for worse, copyright also fosters inventing around. In each area, there is a pattern of follow-on innovators designing new technology so as to avoid the infringement liability that might accrue under the existing intellectual property rights. However, inventing around a patent involves skirting the definition of the protected invention, whereas inventing around a copyright involves skirting terminology in the copyright statute. Unlike patent, copyright is not based on written claims, and so copyright inventing around does not involve navigating the boundaries of a particular intellectual property holder's right. Rather, because copyright links exclusive rights to technological actions such as reproduction, distribution, or transmission, the language of the copyright statute and judicial readings of the statute create boundaries around which potential infringers may technologically navigate.In this Essay, I discuss the phenomenon of inventing around in copyright and how it might be informed by the better-understood phenomenon of inventing around in patent law. I first describe prominent examples of copyright inventing around observed in cases such as A&M Records, Inc. v. Napster and American Broadcasting Cos. v. Aereo. I then turn to an examination of the literature on inventing around in patent, highlighting several insights that may be useful in understanding what occurred in cases such as Napster and Aereo. Finally, I explore how the motivations behind patent and copyright inventing-around doctrines differ in significant ways that might cause copyright inventing around to depart from the analysis found in the patent literature. Recognizing the somewhat hidden hand of copyright in fostering or shaping certain technological progress, I argue that the merits and implications of copyright inventing around deserve closer attention from the courts and Congress.I. COPYRIGHT AND TECHNICAL DESIGNCopyright law by its nature encourages technological design choices that take advantage of definitional loopholes in the rights granted under the copyright statute. Several examples of this effect can readily be identified in the recent history surrounding U.S. copyright law. For example, thirteen years ago the United States Court of Appeals for the Ninth Circuit held the purveyors of the Napster peer-to-peer file sharing system to be contributorily and vicariously liable for copyright infringement.1 This holding was based largely on the particular architecture of the Napster system. …