The questionable origins of the copyright infringement analysis.

• Author: Balganesh, Shyamkrishna
• Position: Continuation of II. The Legal Philosophies (and Personalities

Greater reliance on the summary judgment procedure by trial courts, however, required a good degree of confidence in the facts of the case. As Judge Clark himself acknowledged, summary judgment was appropriate only when there was no "genuine" issue of material fact. To many at the time, the distance between no issue of material fact and a clear dispute of fact was rather significant. Judge Clark's support for summary judgment-as articulated in his writing-appeared to advocate denials of summary judgment only when there was a clear issue of fact, enabling judges to summarily dispose of cases in situations involving the rest of the spectrum. His logic was that in such "cases where no sharp dispute on the facts is uncovered, determination of the case may well turn upon adjudication of a serious issue of law." (214) In other words, when the factual disputes were not "sharp" or distinctive, the dispute usually involved an issue of law. (215) Judge Clark's approach was therefore premised on instilling an approach of factual certitude in lower court judges, enabling them to retake their place in the development of the law. Judge Clark's views on summary judgment therefore went hand in hand with his realist belief that judges are primarily engaged in "the creative job of making new law." (216) All the same, his views were premised on a degree of confidence about the factfinding process and the ability of judges to discern factual disputes (and nondisputes) that was, as a logical matter, radically opposed to Judge Frank's fact skepticism.

Judge Clark's support for summary judgment both drew from and augmented his lack of confidence in juries. In this respect, he shared Judge Frank's views, except that, as a pragmatic thinker, his views were driven less by theory and rhetoric and more by a reformer's outlook. In a 1934 empirical study of civil juries in Connecticut, he carefully reviewed the working of jury trials in the state-casting to the side his own views on the subject. (217) When evaluating the data, he offered the following observation:

Whatever the political, psychological or jurisprudential values of the jury as an institution may be, its use in the civil litigation covered by this study is certainly not impressive. The picture seems to be that of an expensive, cumbersome and comparatively inefficient trial device employed in cases where exploitation of the situation is made possible by underlying rules. (218) Besides being a hardened legal realist and a pragmatic thinker, there was a third--and perhaps more visible--component to Judge Clark's worldview. This was his longstanding professional animosity towards his colleague Jerome Frank. The precise source (and psychological roots) of this conflict has baffled scholars for many years now. (219) Both individuals were prominent, published legal scholars prior to their judicial appointments, and both were "New Dealers" and legal realists who shared similar political and institutional values. (220) Yet their disagreement on the court was legendary. The historian Marvin Schick describes "the virtually uninterrupted friction" between the two as one of the "outstanding feature[s] of the court's work" during the decade. (221) Judge Frank would openly acknowledge this acrimony in his letters, (222) but neither was able to dispense with it in any significant form. In multiple legal opinions, Judge Frank mocked Judge Clark's views on the Federal Rules by making witty references to Judge Clark's characterization of procedure as "the 'hand-maid' of justice." (223) This only caused Judge Clark to become more defensive in both his writing and his positions.

The Clark-Frank feud was sufficiently public and well known that other judges at the court (and beyond) were often aware of it. (224) In one memorandum, Judge Hand chided them, stating, "After you and Jerry [Judge Frank] ... stop shouting, for God's sake file the opinions." (225) In other writings, Judge Hand was even more overt in his identification (and criticism) of this feud. (226) Whatever may have caused this animosity-whether it was the reality that Judge Clark commuted from New Haven and was not a permanent presence in New York (unlike Judge Frank), (227) Judge Clark's own intellectual insecurities, (228) Judge Frank's style of argumentation, (229) Judge Hand's seeming endorsement of Judge Frank on most issues, (230) or Judge Clark's own pugnaciousness (231)--the fact of the matter remains that it influenced both the jurisprudence of the court and Judge Clark's philosophy and outlook on a number of issues. When Judge Frank authored a majority opinion, Judge Clark invariably felt the need to dissent and vice-versa. In the ten-year period between 1941 and 1951, the two were on opposite sides in fifty-eight appeals. (232) Arnstein fell into this category.

In a tribute to Judge Frank wherein Judge Clark described this conflict, Judge Clark described their confrontations as "glorious battles" and characterized Judge Frank as "a gladiator of unusual power and adroitness." (233) In the end, though, Judge Clark attributed the disagreements to his own views on procedural reform, noting:

If we differed, he and I, it tended to be here, where he felt that my aspirations for a uniform procedure, impartial as to all, were likely to rest heavily on some poor person not prepared therefor, and that such a person must be protected, whatever future inconsistencies might come back to trouble us. (234) In summary, then, much of Judge Clark's legal and judicial thinking was heavily influenced by his work on the Advisory Committee and his commitment to the Federal Rules. In this role, he felt fairly sanguine about a lower court's ability to manage the issues involved, once presented with the right procedural mechanisms. To Judge Clark, the overarching ideal of the judicial system was the administration of justice, for which the systematization and streamlining of the process were essential steps in order to facilitate the court's focus on substance. Indeed, Judge Clark felt so strongly about his commitment to the Federal Rules that in a letter to Judge Hand he candidly recognized the conflict:

The truth of the matter is that I sometimes find difficulty in my two capacities of judge and of reporter for the rules. It is hard to know where to draw the lines Maybe the two jobs will become more and more fundamentally incompatible.... Maybe I ought to resign from the Committee.... (235) Whether or not Judge Clark's position compromised his judicial role, the fact remains that the Federal Rules represented his professional "bab[y]." (236)

3. Orchestrating the Reversal

   Having examined the actual opinions in Arnstein as well as the background legal philosophies and beliefs of the panel members that heard the case, this Part aims to reconstruct how--and perhaps more importantly why--Judge Frank structured the opinion in the way he did and, in the process, produced new copyright doctrine: the Arnstein test. To this end, this Part relies not only on the judges' extrajudicial writings, but also on their relevant correspondence, memoranda, and draft opinions in the case, which, together with the published opinions, provide a richer account of the motivations for the Arnstein formulation. This reading indelibly confirms that despite Judge Frank's extensive efforts to avoid creating "bad precedent," his opinion succeeded in doing just that, owing to the rationalized and iconoclastic way in which it was constructed.

   Understanding Arnstein through the judges' correspondence and memoranda provides a unique window into the way in which the judges in the case conceived of the workings of the copyright system and the role of litigation therein. Indeed, their memoranda in the case are more than just ex post explanations for their views and decisions. The memoranda represent the very process through which they reasoned to arrive at their votes and conclusions in Arnstein. At the time, the Second Circuit adhered to a rather unique practice. The judges who heard a case met in conference to discuss their views an entire week after the oral arguments, during which time they were expected to indicate how they planned to vote through the mutual exchange of written memoranda. (237) While the process was no doubt laborious for the judges themselves (and often criticized (238)), it nonetheless ensured that their memoranda were candid instruments of persuasion and reasoning that today contain a wealth of hidden detail about the disposition of a case. This was indeed true of Arnstein, where the judges generated a rich paper trail that sheds light on what Judge Frank intended to achieve with his opinion, in contrast to what actually became of it over time.

   1. Divergent Musical Hunches and Procedural Sensibilities

      Arnstein was argued before the Second Circuit in the week of January 7, 1946, (239) and in keeping with the court's protocols at the time, the judges scheduled their conference for the following week. A few days after oral argument, on January 11, Judge Frank was the first to weigh in. (240) Noting that there were good occasions for summary judgment in copyright infringement cases, he argued that this was "not such a case." (241) The crux of the matter, in his view, boiled down to this: "I have listened to [both musical compositions]. I am relatively unversed in this field. But I think that ... Porter's [composition] has some marked resemblances to ... Arnstein's.... So, too, does my secretary who improvises music." (242)

      His own auditory sensibilities therefore urged him to conclude that the plaintiff, Ira Arnstein, was "entitled to a trial." (243) Judge Frank then sought to underplay the plaintiff's seemingly fantastical allegations, noting how "partly crazy men" could still be victims of plagiarism, especially since the plaintiff's works "show considerable ability." (244) He concluded his initial memo with a jibe at the district court, noting...