In Sony Corp. of America v. Universal City Studios, the Supreme Court applied a doctrine formulated for patent law to an issue arising in copyright law. The Court supplied a rationale for doing so by identifying a “historic kinship” between patent and copyright law based on fundamental goals of intellectual property law. The Court considered how the rationale applied in the particular factual context involved. The Court cautioned that the propriety of extending a doctrine developed in one intellectual property regime to another depends on the particular legal issue involved. Despite the importance of ensuring that new rules are consistent with the underlying rationale for intellectual property law and the Supreme Court’s cautionary language, lower courts regularly quote the “historic kinship” as a justification for applying rules from one regime to another. This article surveys all of the cases referring to Sony’s “historic kinship” and finds that most lower courts abuse the precedent by failing to consider the rationale and heed the caution. The risk created by this misapplication of Supreme Court precedent is that new intellectual property rules may be inconsistent with the underlying goals or inconsistent with other doctrine.
David W. Barnes,
Abuse of Supreme Court Precedent: The "Historic Kinship",
Chi. -Kent J. Intell. Prop.
Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol16/iss1/4