Copyright’s Interpretive Turn
Zahr Said's Reforming Copyright Interpretation puts its finger on an important, yet little studied, aspect of copyright law: judicial interpretation. It pushes the ball quite a bit by providing a descriptive taxonomy of courts' interpretive approaches in copyright law, advancing and defending an interpretive approach that it considers best overall, and applying and exemplifying its framework and arguments with a good number of cases while situating it all within a larger body of law and literature scholarship. For me, that's tons of progress in one article, and the reason why I like it lots. In resolving copyright disputes, judges must make interpretive decisions. Decisions regarding interpretation are often outcome-relevant - for example, when they lead a judge to decide whether an issue is a matter of law or fact or whether expert testimony may be admitted or not. These decisions can also be outcome-determinative - for example, when a judge makes an interpretive decision that resolves a case on summary judgment or finds an allegedly infringing use to be fair. The interpretive judgment that these decisions involve often flies under readers' radars. Said draws our attention to judges' interpretive choices and to the systemic effect that they have, or could have if they were to be conducted appropriately, on copyright law.