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Perspective

Apr. 2, 2009

The Copying Myth

Despite its canonical status, copying as a factual matter is untethered to the language of the Copyright Act and Congress' discernible intent.

By David A. Gerber

The sine qua non of copyright infringement is the defendant's "copying of constituent elements of the work that are original." Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). Undetectable in this formulation is that "copying" encompasses two quite different requirements. It refers both to the defendant's use of protected material "as a model, template or inspiration," and to appropriation of a sufficient quantum of that ma...

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