Document Type
Article
Publication Date
Fall 2025
ISSN
2324-6286
Publisher
New York University School of Law
Language
en-US
Abstract
In the internet age, the copyright de minimis defense has increased in relevance as copyright lawsuits (and IP generally) are more mainstream and infringement liability more widespread. This Article is the first empirical analysis of copyright de minimis defense cases, collecting and analyzing all such decisions since the mid-19th century. It traces the doctrine’s development over the past century and its evolution in the digital era, when copying has become even more ubiquitous but its triviality remains widely disputed. The Article’s aim is not only to map the de minimis defense to learn more about it doctrinally—asking when is copying “too little” and how is that evaluated— but also asks the deeper, unresolved question about the harm copyright law aims to prevent and the benefits towards which it aims. In doing so, it proposes new rules for the de minimis defense designed to revive its appropriate function and filter out unmeritorious and inefficient copyright cases.
The Article begins with the hypothesis that, in the digital era, the copyright de minimis defense should be more relevant and more successful: as much as there is more copying on the internet, most of it is trivial. The data shows the first to be true (rise in relevance) but not necessarily the second (litigation success rates). Indeed, invocation of the de minimis defense has grown, but not its success in litigation, suggesting judicial skepticism toward the idea of trivial copying. That skepticism bodes poorly for the information age in which copying small bits of expression (or whole works momentarily) is essential for communication. The Article’s deep dive into the de minimis defense further explains how its evolution affects other aspects of copyright law, opening opportunities and exposing pitfalls in the context of strategic litigation. In the end, freedom of expression and the progress of science are at stake, and revitalization of the de minimis doctrine is a key to preserving these fundamental tenets of U.S. copyright law.
Recommended Citation
Jessica Silbey & Samantha Zyontz,
De Minimis Copying: An Empirical Study
,
15
Journal of Intellectual Property and Entertainment Law
118
(2025).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4192
