Abstract

This chapter summarizes the current state of the art in the application of observational empirical tools to the study of copyright litigation. The chapter divides the field into three broad categories: studies of judicial behavior, studies of copyright litigation trends including the selection of disputes for litigation, and studies of particular aspects of copyright doctrine. Using data from many of the studies reviewed, this chapter provides independent analysis and alternative visualizations of some of those articles key findings. The chapter contains in-depth treatment of several observational studies of copyright fair use cases, including Barton Beebe’s landmark 2008 study and Neil Netanel and Matthew Sag’s extensions thereof. The chapter concludes with guidelines for researchers planning to undertake an empirical study of copyright litigation and argues that, used responsibly, empirical methods have the potential to augment legal scholars’ traditional toolset by injecting some rigor into casual empirical observations and by identifying patterns of behavior and judicial decision-making that might otherwise go unobserved.