IP and Cognitive Psychology

By Mark McKenna

William Patry has an interesting post over at his blog about how courts go about determining substantial similarity in copyright infringement actions. The post resonated with me for a couple of reasons.

First, I always have great difficulty teaching substantial similarity to students. I’ve found that all you can really do is give lots of examples of things found substantially similar and things that were not. But devining any methodology in determining whether the allegedly infringing work is substantially similar to the plaintiff’s work is an exercise in futility. Patry notes that right now, copyright law exists at the crude level of Potter Stewart’s “I know it when I see it.” There’s a lot of truth in that, and it’s not a particularly good thing. It puts a lot of power in the hands of a judge. Despite courts’ protestations that substantial similarity should be judged from the standpoint of an ordinary consumer of the copyrighted works, usually the question is viewed from the standpoint of an ordinary federal judge and/or his clerks (I use “his” purposefully here, because although things are getting better, the federal judiciary is still predominantly populated with white men, most of them probably not that familiar with popular culture). Thus, this test probably tends to favor the types of works middle aged white men consume, and tends to disfavor the types of works with which they are not familiar. I don’t want to overstate the disparate impact point, but it seems pretty real to me. There’s a good paper to be written on this I suspect.

The other reason I really liked Patry’s post is that it contemplates using modern research on cognition to aid the substantial similarity determination. I’m currently fascinated with cognitive psychology and am working on something with Dan Hunter trying to apply some of its lessons to trademark law. It seems like a no-brainer really. If we’re trying to figure out how ordinary folks compare things and make decisions, why would we not look to research that seeks to understand how people in fact make decisions? There is an answer to that question, but it’s a cynical one. At least in trademark law, if we really tried to figure out what people were thinking, we’d probably find a lot less infringement. When trademark law is written by INTA and pushed predominantly by companies with valuable trademarks, is it any wonder we haven’t gone down the reality road?

Update: Mike Madison discusses Patry’s post over at Madisonian.net. I should have mentioned this before, but Mike has a couple of interesting papers that deal to some extent with cognition. He links to them in his post – check them out.

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