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Abstract
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This Essay, delivered as the 2023 Brace lecture, examines the role of the real unsung heroes of the modern U.S. copyright system: the federal judiciary. For the longest time, discussions of copyright policy and reform in the U.S. have altogether neglected the role that courts are meant to play in working copyright’s substantive and procedural rules. These discussions have instead assumed a norm of passivity from courts, who are presumed to either engage in a mechanical application of the statute’s text to decide disputes or instead make the law incrementally in common law style. In this Essay, I argue that in copyright matters, courts do something altogether different from both statutory interpretation and common law rule development. The “judicial method” in copyright instead involves (i) a complex self- understanding of the judicial role, one that is combined with (ii) an appropriate exercise of judgment from the applicable sources as well as (iii) an assessment of the system-wide consequences of individual decisions, which is then (iv) translated into principled reasoning. The Essay unpacks the origins, core elements, and motivations of each of these four steps to show how courts have engaged the copyright system over the last half century in a manner that has been anything but mechanical and workmanlike, despite scholarly and policy accounts that have underplayed its uniqueness.