JUST THE FACTS: EMPIRICALLY DRIVEN IMPACT LITIGATION AS A ROUTE TO COPYRIGHT REFORM.

There is extensive evidence suggesting that U.S. copyright law, in its current form, is broken. Legal scholars and practitioners overwhelmingly agree that there is a fundamental disconnect between copyright law's animating purposes and its actual effects. However, little of this evidence has been seriously considered by the courts. This is unfortunate, as sound interpretation of copyright law requires an appreciation of the profound impact that this relatively technical doctrine has on the public interest. This Article therefore investigates strategies for incorporating empirical evidence into impact litigation aimed at reforming U.S. copyright law. Although direct changes to law by the legislature would provide a more durable solution, it is clear that there is currently insufficient political will to make the needed changes to copyright law through the legislative process. Therefore, empirically-driven impact litigation remains the most realistic avenue for driving substantive reform of copyright law at present. Significant legal scholarship has demonstrated the problems with current copyright law, but the question of how to bring this information before the courts has been largely ignored. The literature contains no systematic examination of how empirical evidence might be incorporated into copyright litigation. This Article seeks to fill that gap. There are a number of hurdles that copyright litigators must overcome in order to successfully present this type of evidence to the courts. Most importantly, judges who rely on empirical evidence risk the accusation that they are merely substituting their own policy preferences for those of the legislature. Because courts must give a high level of deference to the legislature in matters of statutory interpretation, it is imperative that copyright litigators provide courts with robust doctrinal hooks for considering empirical evidence, and that such evidence be methodologically unassailable. In particular, advocates may wish to focus on constitutional arguments, as constitutional grounds give courts a more solid footing for potentially contradicting or undermining Congressional intent. The Article demonstrates that current copyright law contains a number of promising doctrinal hooks that do just this. Accordingly, there are ample avenues for litigators to successfully employ empirical evidence to drive much needed reform of copyright law--provided they are careful to heed the lessons of similar efforts in other areas. [ABSTRACT FROM AUTHOR]

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