In the last few days, a matter that has come to me has dramatically reinforced the case for sending copyright questions to the Federal Circuit. I am now having to wrestle with an attorney in New York over potential copyright infringement of a film. That matters because, as I noted above, the law concerning exactly what features of a literary work are protected from later use in a film is substantially different in the Second Circuit than it is in the Ninth Circuit. Although most appellate circuits have gravitated toward the Ninth Circuit's view in the Krofft/McDonald's case, the Second Circuit has not taken the opportunity to revise its own precedent. Since the matter would almost certainly be heard in California, under Ninth Circuit law, I have had to begin the reeducation process.
Of course, the same thing happens to me on issues foreign to me. In the Ellison appeal, for example, we had to deal with an improper (in timing, substance, and form) amicus filing that would possibly have been sanctioned for misconduct in the Seventh Circuit, my home base (see, for example, this recent example (PDF, 55kb). It is frustrating enough when the substantive law varies from state to state; as inefficient and downright nasty as that can be, there is at least a constitutional basis for the variation. When there is not, however…