Research Handbook on the History of Copyright Law
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Research Handbook on the History of Copyright Law

Edited by Isabella Alexander and H. Tomás Gómez-Arostegui

There has been an explosion of interest in recent years regarding the origin and of intellectual property law. The study of copyright history, in particular, has grown remarkably in the last twenty years, with a flurry of activity in the last ten. Crucial to this activity has been a burgeoning focus on unpublished primary sources, enabling new and stimulating insights. This Handbook takes stock of the field of copyright history as it stands today, as well as examining potential developments in the future.
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Chapter 11: Equitable infringement remedies before 1800

H. Tomás Gómez-Arostegui


The tail that wags the dog. Nowadays, that is how we often refer to the law of remedies in copyright cases. This is not surprising given that the availability vel non of certain remedies, such as injunctive relief and statutory damages (in the United States), often drives whether a copyright holder sues. In this chapter, I review the remedies that were available to copyright and printing-patent holders in the Court of Chancery in England before 1800. Although the Court of Exchequer also heard printing disputes on its equity side, the Chancery served as the chief venue for these disputes and was the principal court of equity in England. The history of this field is interesting for its own sake. But it also happens that in the United States early equity practice remains doctrinally relevant, despite the partial merger of law and equity in 1938. The US Supreme Court continues to rely on eighteenth-century English cases at common law and in equity in deciding whether litigants have a right to a jury trial on copyright remedies and in setting the default equitable remedial powers of the federal courts. The court has also reaffirmed the historical distinction between legal and equitable defences in copyright suits. In short, as Samuel Bray has noted in his recent study of the Supreme Court’s remedies jurisprudence, the court has, ‘with vigor’, insisted ‘on the historic division between law and equity.

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