Patent law has long harbored the concept of “inventing around,” under which competitors to a patent holder may be expected, and even encouraged, to design their technologies so as to skirt the boundaries defined by patent claims. It has become increasingly clear that, for better or for worse, copyright also fosters inventing around. Copyright is not based on written claims, but because copyright links exclusive rights to technological actions such as reproduction, distribution, or transmission, the language of the copyright statute, and judicial readings of the statute, create boundaries around which potential infringers may technologically navigate. For example, the Aereo case recently decided by the Supreme Court involves technology that was explicitly designed to conform to noninfringing definitions of private transmission found in previous court decisions. But in copyright, unlike patent, there has been little analysis of the tendency to foster alternative technological development. This Essay draws upon previous analyses of inventing around in patent law to assess the benefits and detriments of inventing around in copyright.
