What makes a theory? Some thoughts on inverse ratios and Funky Films

Thanks to Dan and the rest of the Prawfs for inviting me back for another stint.  Recent guest blawggers have set a high bar, and I can’t guarantee that my posts will be Lipshavian in frequency, but I look forward to being on the scene for the next few weeks.

So earlier this year this site had a great discussion of the question whether it takes a theory to beat a theory.  A few days ago, the Ninth Circuit issued an opinion that raised a related prior issue:  what does it mean for something to be a theory?  The case, Funky Films, Inc. v. Time Warner, rejected a copyright infringement suit by a plaintiff who claimed that the HBO series Six Feet Under infringed on her copyright in an earlier screenplay.  The Ninth Circuit’s opinion included a dismissal of the “inverse ratio theory”, a copyright doctrine suggesting that showing increased access to a protected work necessitates a correspondingly lower showing of substantial similarity in order to generate a finding of infringement.

The inverse ratio theory has come under fire from courts and commentators who have (rightly) questioned whether increased access is relevant to whether a particular amount of copying has occurred.  They’ve also questioned whether the inverse ratio theory is a “theory” at all.  William Patry points out that a theory “must provide an analytical framework that can explain existing facts and aid in predicting future events.”  And the Second Circuit has derided the inverse ratio theory’s explanatory leverage, describing it as a “superficially attractive apophthegmatic [N.B.: maxim] which upon examination confuses more than it clarifies. The logical outcome of the claimed principle is obviously that proof of actual access will render a showing of similarities entirely unnecessary.” These criticisms seem right to me. But do they really mean that the inverse ratio theory isn’t a theory at all?

One common ground appears to be that the inverse ratio theory/rule/maxim/apophthegmatic is hollow at the core.  There’s no reason to think that the amount of access to a protected work determines the amount of copying.  I can have a copy of The Corrections on my bookshelf but coincidentally happen to pen a very similar work (and if that happened to result in my coincidentally winning the National Book Award, so be it).  But the fact that a theory fails doesn’t mean that it lacks the character of a theory as a descriptive matter, but rather that it’s merely a bad theory.

The courts that developed the inverse ratio theory undoubtedly thought that the sliding-scale relationship between access and substantial similarity explained when infringement had taken place and when one would find infringement in future cases.  This fits the explanatory/predictive definition of a theory, even though it’s as readily disprovable as a theory that says you have copyright infringement whenever the plaintiff’s name is Joe or the defendant has more than two vowels in her last name. There are, to be sure, plenty of ideas in law that aren’t theories.  Holdings, at least those that are strictly limited to the facts of a case, are particularized and don’t have the general quality that a theory has to.  But it seems to me that flawed theories like the inverse ratio theory remain theories, even if ones that lack the explanatory leverage they claim to possess.