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![handle is hein.journals/ujlt3 and id is 1 raw text is:
On The Legal Standard for Copyright Infringement
Douglas Y'Barbo
Introduction
[1]Copyright is a federal legal regime of exceptional influence on both
American art and commerce. Literature, film, music, sculpture, architecture, and
software all rely primarily upon federal copyright law for protection against
unauthorized copying, which, if left unconstrained, would unquestionably squelch the
incentives to create, or to invest in such creation.
[2]Yet the legal standard relied upon to determine copyright infringement is
deeply fissured between the two major copyright courts--the Second and Ninth
Circuits.Q The remaining regional circuits appear to be unaware of this fissure, as
evidenced by the fact that several of them apply both tests interchangeably.
Additionally, the infringement test is, by consensus, complicated, time-consuming,
and multi-pronged, having vague and redundant nomenclature, and for these reasons
alone, resists straightforward explanation. No serious attempt has been made in the
scholarly literature to reconcile or to harmonize these two disparate standards, nor to
urge one over the other, despite the urgent need to do so.L This shall be the focus of
this article.
[3]More particularly, the purpose of this article is to explain in detail the two
legal standards with particular emphasis upon the points of disparity, to discuss the
source of this disparity, and then to discuss its significance. Finally, a nominally](ViewImageLocal?handle=hein.journals/ujlt3&div=1&collection=&method=preview&ext=.png&size=3)