A Supreme Court Without RBG May Impact Hollywood's Grip on Intellectual Property; Billboard, September 21, 2020

Eriq Gardner, Billboard; A Supreme Court Without RBG May Impact Hollywood's Grip on Intellectual Property

 

[Kip Currier: This is a note I posted for my Intellectual Property and Open Movements course I'm teaching this term...

Timely and fascinating article regarding the recent passing of U.S. Supreme Court Justice Ruth Bader Ginsburg and her "copyright hawk" impact on many landmark Intellectual Property cases, like some we have already examined this term, e.g. Golan v. Holder (public domain) and Eldred v. Ashcroft (20 year extension of U.S. copyright protection period to Life of the Author plus 70 years.) In noting Ginsburg's judicial philosophy that tended to favor copyright maximalism, while a staunch civil rights defender and advocate for the equal rights of marginalized persons to the end, this article reminds us that people are often much more complex and less easily-defined than the boundaried labels that are often ascribed to them. And Justices are no different in that regard.]

 

 "Ginsburg gravitated to intellectual property disputes almost from the moment the Brooklyn, NY-born attorney was appointed to the Supreme Court by President Bill Clinton in 1993. More often than not, when a big ruling on the subject was on the table, it was she who carried the big pen. Notably, in 2003, Ginsburg wrote the majority opinion in Eldred v. Ashcroft that blessed an extension of the copyright term over a free speech challenge. Almost a decade later, she reached a similar conclusion in Golan v. Holder, which dealt with works taken from the public domain to comply with an international treaty. Ginsburg also shaped who could sue for copyright infringement — and when — with her majority opinions in Petrella v. MGM (2013) and Fourth Estate Pub. Benefit Corp. v. Wall-Street.com (2019). She also wrote a concurring opinion in MGM Studios v. Grokster, the case which apportioned secondary copyright liability in the file-sharing age.

Ginsburg was certainly hawkish when it came to copyright. And her view can be most sharply contrasted with those of Justice Stephen Breyer, demonstrating that there's more to judicial philosophy than a conservative-liberal divide...

Now comes Google v. Oracle, which has been hailed for good reason as the "copyright case of the century." It concerns Oracle's efforts to punish Google for allegedly infringing computer code to build the Android operating system. At issue in the case is the scope of copyright. Does the structure, sequence, and organization of application programming interfaces get protected? And separately, does Google have fair use to whatever is copyrighted? The movie industry is backing Oracle in the case —and the high court's conclusions will surely have an outsized influence both on the development of technology as well as how future copyright cases get adjudicated. Ginsburg's passing is probably bad news for Oracle's chances here. Of all the justices, she was least likely to read limits to copyright protection."

Will EU repeat US copyright error?, London Guardian, 12/6/08

By Cory Doctorow, Via London Guardian: Will EU repeat US copyright error?:

"As I type this, members of the European Parliament are preparing to repeat one of the worst mistakes in copyright history — enacting a European version of America's reviled Copyright Term Extension Act of 1998.

The EU version will tack 45 years onto the duration of copyright for existing and future sound recordings, making for a grand total of 95 years' worth of monopoly control for companies that produce recordings...

Giving additional copyright for existing works can't possibly create the incentive to make more works — you could give Elvis Presley a million years' worth of copyright on his 1955 recordings and he still won't record any more music...

The US extension of copyright has turned almost every work created in America's history into an "orphan" — a work whose copyright has not expired, but whose copyright holder has been lost to the mists of time.

The court in Eldred held that an astonishing 98% of works in copyright were orphaned...

Experts all agree: extending the copyright on existing works provides no benefit save a windfall to a small minority of already-wealthy artists and giant corporations (if your music is still commercially viable after 50 or 95 years, you're a billionaire like Paul McCartney, not a struggling artist — or you're the giant label that acquired the rights to one of the lucky few artists' works)."

http://www.guardian.co.uk/technology/2008/dec/06/cory-doctorow