November 6, 1998

Commission on Structural Alternatives for the Federal Courts of Appeals
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20544

RE: Comments of the American Intellectual Property Law Association on the Commission's Draft Report

To Whom it May Concern:

I am writing on behalf of the American Intellectual Property law Association (AIPLA) to address Part C, the chapter on Appellate Jurisdiction, of the draft report of the Commission on Structural Alternatives for the Federal Courts of Appeals, specifically addressing the question of copyright jurisdiction in the Court of Appeals for the Federal Circuit.

The AIPLA is a national bar association whose nearly 10,000 members are primarily lawyers in private and corporate practice, in government service, and in the academic community. The AIPLA represents a wide and diverse spectrum of individuals, companies and institutions involved directly or indirectly in the practice of copyright, patent and trademark law, as well as other fields of law affecting intellectual property.

Initially, we must state that, although the draft report attempts to be neutral, we believe that it, perhaps inadvertently, promotes the potential desirability of having copyright claims ultimately adjudicated in the Court of Appeals for the Federal Circuit.

We believe the creation by Congress in 1982 of the U.S. Court of Appeals for the Federal Circuit (CAFC) has achieved desirable goals. Indeed, our Association strongly supported the legislation and we continue to strongly support the concept of appellate jurisdiction over all patent cases by the CAFC. Copyright cases, however, are a different matter. The law concerning computer software copyrights is a relatively small part of the law of copyright. Further, the fact that patents are issued for computer software programs that often are also the subject of copyrights does not provide a supportable basis for the suggestion that both types of claims be ultimately adjudicated in the same court.

Perhaps more importantly, the diversity of views which enriches the law is especially important when dealing with a subject like "art" in all of its genres and forms. Justice Holmes, in Bleistein v. Donaldson Lithographing, noted that federal judges were not the right people to determine what "art" was. We believe he was correct and that placing these questions in one small group of judges would be a very bad idea. Furthermore, copyright fair use issues are tied to First Amendment issues and therefore, we believe the appellate function with regard to copyright cases is best performed in the generalist court of appeals established in each regional circuit.

Another concern is the effect of adding any additional burden to the already crowded docket of the Federal Circuit. The Federal Circuit docket is currently not any lighter than many of the regional circuit courts of appeals. Without increasing the number of judges at the Federal Circuit or otherwise reducing the Federal Circuit's workload, there is dubious merit in adding additional appeals to its docket. It should be noted that any objective analysis of Federal Circuit caseload, vis a vis the regional circuits, should take account of the fact that the patent cases handled by the Federal Circuit are often more difficult and involve more judicial time than many other types of appeals. Overloading the Federal Circuit is a particular concern with respect to social security appeals, which currently occupy a not insignificant percentage of the regional circuits' docket.

The Federal Circuit should not become a "catch-all" court or a "dumping ground" for various types of appeals that can be neatly carved out of the regional circuits' jurisdiction. Most of the arguments for consolidating tax appeals into one appellate court (e.g. uniform interpretation of federal law having nationwide application) can be made just as well for other substantive areas of the law with just as much weight of reason and conviction. In other words, the fact that additional jurisdiction can be added to the Federal Circuit is not a reason for doing so.

The AIPLA respectfully suggests that the statements regarding technological developments cited in the Copyright cases sub-part of the draft report are misleading and should be removed or modified. Furthermore, we suggest that the current makeup of the Federal Circuit and its caseload be carefully scrutinized before any such change in jurisdiction is made.

For all of the foregoing reasons, AIPLA believes it would be unwise to extend the jurisdiction of the CAFC to include appeals of copyright cases and therefore would oppose such a change.

Sincerely,

Michael K. Kirk
Executive Director