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The Purposeful Messiness of United States Caselaw

How courts make and interpret law, and what it means for copyright.

A row of five books with blue covers titled "History of the Supreme Court of the United States." Along with the title, the spine also features the seal of the United States.

Judicial decisions—commonly known as caselaw—are extremely important to the United States legal system because each decision has the chance to change the law, often incrementally but sometimes dramatically. But have you ever wondered why courts in the United States have the power to make and change the law with their decisions, instead of merely interpreting and applying the statutes that Congress passes and the President signs? The answer to this question has to do with the United States’ status as a common law country.

The common law

The United States is a common law country with a legal system that (mostly) derives from the English tradition. The common law dates back to 1215, when King John of England issued the Magna Carta at Runnymede. This charter established the primacy of the law and the principle that no one is above the law -- a principle that still holds true today. Other common law countries include the United Kingdom and other former British colonies, like India, Australia, and New Zealand.

One feature of common law systems is that the law develops over time as courts review new legal disputes and decide how the law applies to them. In this system, each time an appellate-level court – a court that sits above trial level courts in the hierarchy and has the power to overturn the decisions of courts that are below it – issues a decision, it changes the law because other courts use prior holdings in future controversies, following the principle of stare decisis.  

Stare decisis -- Latin for “to stand by things decided” -- binds lower courts to the decisions of courts above them in the jurisdictional hierarchy. Even “simple” cases of statutory interpretation -- where judges determine the meaning of the words of a statute -- change the law, because lower courts must follow interpretations from higher courts. While people often use the phrase “legislating from the bench” to criticize judges who appear to enact policy preferences with their decisions, and while Chief Justice John Roberts once described his job as a judge is to “call balls and strikes, and not to pitch or bat,” it is nevertheless a fact of common law systems that judicial decisions from appellate-level courts change the law.

Mandatory v. persuasive authority

Unfortunately, what decisions are binding on what courts and how court hierarchy works can be hard things to figure out. In short, courts must follow decisions from courts above them from the same jurisdiction, but they can choose to follow courts from other jurisdictions. This is the distinction between “mandatory authority” and “persuasive authority.” 

While the United States Supreme Court sits above all other courts in the country, and its decisions bind all other courts, the hierarchy below the Supreme Court is more complex. This is because we have two parallel court systems in the United States: state courts and federal courts. Each system has its own jurisdictional districts, and the decisions from one state or one district do not bind the courts of another. 

In general, state courts issue authoritative judgements--that is, judgements that are binding--on state law, federal courts issue authoritative judgements on federal law, and each only binds the courts in their particular jurisdictions. Thus, if the Pennsylvania State Supreme Court issues a decision on Pennsylvania state law, only state courts in Pennsylvania must follow that decision. Federal courts, meanwhile, need to follow judgements from the Pennsylvania Supreme Court when ruling on Pennsylvania state law, but not when ruling on federal law, even if the issues are identical.

Modern copyright is entirely federal law, so we look to the federal courts for authoritative caselaw. The federal court system has 13 judicial circuits, 11 that cover the various states and territories, and one that covers Washington, D.C. Then there is the Federal Circuit, which only hears certain types of appeals, such as appeals from patent cases. The trial courts, where you would first file a case, are called District Courts; the highest court in each of those circuits is called the Court of Appeals. Decisions from each Court of Appeals are mandatory authority for the lower courts in those Circuits, but not from the other Circuits; the U.S. Supreme Court binds everyone. So, if the 9th Circuit says something is fair use, the 3rd Circuit (where Pennsylvania sits) does not have to agree. If the exact same situation comes before a court in the 3rd Circuit, that court can choose to follow the 9th Circuit’s decision, but it does not have to. However, the lower federal courts in California, Oregon, Washington, Nevada, Idaho, Arizona, Hawaii, and Alaska all must follow that 9th Circuit decision because they sit in that jurisdiction.

Adding to the complexity, not necessarily everything a court writes in a decision is law. Sometimes courts opine on issues that are beyond the scope of the litigation at hand. Those extraneous thoughts are called dicta, and technically don’t make law. However, determining what is dicta and what is holding can be very challenging.

Ultimately, it is important to pay attention to the jurisdiction a case comes from, where a court issuing a decision fits in the overall hierarchy, and the issues within the case to understand its legal effect.

Copyright statutory and case law

Even though cases may be important in our legal system, the usual starting place when trying to understand a law, including copyright, is the statute. Statutory copyright law is in Title 17 of the U.S. Code. So, when trying to understand how copyright applies to a given situation, we usually start by looking there.

But what happens when a statute doesn’t clearly answer a question? What happens when a part of the statute isn’t fully defined? This is when we turn to the caselaw. Caselaw helps fill in the gaps where statutes don’t fully explain how the law applies to various situations. In fact, sometimes Congress intentionally leaves the law undefined to allow for flexible, case-by-case application of the law. In copyright, this is probably most obvious with fair use. The fair use statute, 17 U.S.C. § 107, sets forth guidelines for how to determine what uses are fair, but it doesn’t list the types of acceptable uses. Instead, when Congress created this statute, it likely expected courts to flesh out fair use over time as new controversies arise.

One weakness of this design is that the law does not develop evenly across the country. Not only may courts below the Supreme Court disagree on how to interpret or apply the law -- creating “circuit splits” -- but also some courts hear more cases than others, more fully developing the law in some Circuits than in others.

The 2nd and 9th Circuits tend to hear the most copyright cases; therefore, decisions from these circuits tend to be highly persuasive on other Courts of Appeals. But remember that decisions from those circuits are only mandatory authority for those courts. So, for example, people (myself included) often point to the case Author’s Guild v. Google in support for the argument that training generative AI models is fair use. But we must recognize that this is just one case from the 2nd Circuit and not binding on other courts. While I think this case is highly persuasive, I can’t say for certain that any other courts will agree. This is, in fact, a feature of our system, not a bug: jurisdictions should have the power to understand the law for themselves unless the Supreme Court directs them otherwise. 



May 22, 2024