Supreme court decision deck federal circuit copyright expertise, causing legal confusion.

In 1982, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") was created by merging the Court of Customs and Patent Appeals and the appellate jurisdiction of the Court of Claims."1 3 Because Congress noticed a trend in inconsistent patent jurisprudence across the country, Congress created the Federal Circuit with intentions "to reduce the widespread lack of uniformity and uncertainty of legal doctrine that exists in the administration of patent law."" 4 Although this paper discusses copyright infringement issues rather than patent law issues, both patent and copyright law are notoriously difficult for layperson jurors to understand and for judges to adjudicate. " Both copyright and patent law are exclusive to federal jurisdiction already, and both regimes extensively require expert testimony. "The Federal Circuit is a panel of experts who specialize in, among other issues, patent law,"11I6 and the overall result of staffing a patent-focused court with patent-trained judges has been generally helpful." By expanding the court and conferring appellate jurisdiction over copyright issues, the court retains its specialized focus in intellectual property and can help clarify copyright law on a federal scale more efficiently than every circuit being conflicted with each other. Since the Federal Circuit has already examined complex copyright issues previously, conferring appellate jurisdiction over copyright issues is logical. Recently, in Google v. Oracle, the Federal Circuit examined a copyright infringement case dealing with computer software.' Even though the Federal Circuit has appellate jurisdiction over patent cases, the jurisdiction statute only requires a patent case to be alleged in the complaint." 9 By assigning the Federal Circuit appellate jurisdiction over copyright cases in addition to patent cases, copyright law will benefit from greater uniformity and the parties, likewise, will benefit from having specially-trained appellate judges adjudicating their cases. However, the Federal Circuit's patent law decisions have introduced controversy.120 Federal Circuit patent decisions are often reversed by the Supreme Court, despite the Federal Circuit's technical expertise.121 Conferring exclusive appellate jurisdiction for copyright cases might similarly create additional confusion since Federal Circuit judges are not experts on copyright law and have misapplied copyright standards previously.12 2 Despite some potential negative jurisprudential implications, "[t]he increasing importance of the Federal Circuit to the Supreme Court and the wide-reaching influence the court holds due to its unlimited geographical jurisdiction position [establishes] the court as the voice of American intellectual property."1 23 As a result, conferring exclusive appellate jurisdiction for copyright cases to the Federal Circuit helps achieve uniformity in copyright jurisprudence.1 24

V. CONCLUSION

Creatives in the United States depend on the success of the United States' copyright system, and there is a strong need for modernization of the Copyright Act.1 2 5 One of the main problems is the continued confusion of the term "substantial similarity." Theories such as the Inverse Ratio Rule that confuse the issues of actual copying and unlawful appropriation do not resolve the problem. Not only should the Sixth Circuit explicitly reject the Inverse Ratio Rule, following suit with almost every other circuit's abrogation or rejection of the Inverse Ratio Rule, but also the entire process of finding copyright infringement needs a major refresh. Like the United States Patent and Trademark Office's post-grant proceedings for patents, the Copyright Office should be given substantive administrative review capabilities to determine whether two pieces of material are similar enough to enable a finding of copyright infringement. Alternatively, the issues of actual copying and unlawful appropriation should be split between judge (either administrative or Article III) and jury. Using the functional considerations in Markman, the judge should first analyze actual copying by determining whether there is enough probative similarity between both materials and whether sufficient access was present. Then, if judge finds actual copying, the jury should be tasked with analyzing unlawful appropriation through evaluating the probative similarities the judge found and deciding if an unreasonable amount of copyrightable subject matter was taken. Finally, instead of each circuit creating its own copyright jurisprudence, Congress should act to create uniformity in copyright law by giving the United States Court of Appeals for the Federal Circuit appellate jurisdiction for copyright issues. The American copyright system requires a major makeover, and to begin the makeover, the Sixth Circuit should steer into the Ninth Circuit's skid by abrogating the Inverse Ratio Rule similar to the decision in Skidmore v. Led Zeppelin.126