Stephen G. Breyer may shape tech’s copyright battles for years to come; The Washington Post, January 27, 2022

Cristiano Lima with research by Aaron Schaffer, The Washington Post; Stephen G. Breyer may shape tech’s copyright battles for years to come

"Stephen G. Breyer may shape tech’s copyright battles for years to come

With the looming retirement of Supreme Court Justice Stephen G. Breyer, tech policy wonks say the high court is losing one of the nation’s preeminent thought leaders on intellectual property and copyright.

But while Breyer may be on his way out of federal court, his influence over those standards, and how they map onto emerging technologies, is poised to live on long after.

For decades, Breyer has carved out a unique role on the bench as a copyright specialist, said Meredith Rose, senior policy counsel at consumer group Public Knowledge. And his advocacy for a more limited view of intellectual property rights than some of his colleagues, such as the late Justice Ruth Bader Ginsburg, made him a “rarity” in the space, Rose said. 

“He’s definitely got the biggest depth of experience in copyright issues on the bench currently,” she said. “It was really him and Justice Ginsburg were the two titans of copyright.”

Corynne McSherry, legal director at the Electronic Frontier Foundation, called Breyer “a very strong voice for a balanced intellectual property system” that ensured that copyright and patents are “encouraging innovation, encouraging new creativity … as opposed to thwarting it.”

These traits, they said, were exemplified in one of Breyer’s most recent high-profile copyright cases: the contentious, decade-long Google v. Oracle bout."

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."

Google v. Oracle: Fair Use and the Seventh Amendment; JD Supra, September 15, 2020

 Dorsey & Whitney LLP, JD Supra; Google v. Oracle: Fair Use and the Seventh Amendment

"On August 7, 2020, Google and Oracle submitted their final written arguments to the Supreme Court regarding their decade-long copyright battle over the source code animating the Android platform. Now, we focus on the second question presented to the Supreme Court: whether Google’s copying of Oracle’s Java source code is a non-infringing fair use.

Recall that in December 2019 we introduced “the copyright lawsuit of the decade.” In March 2020, we covered the first of two questions presented to the Supreme Court: whether Java software interfaces are protected by copyright. Before we could address the second question presented, however, the Supreme Court delayed oral arguments on the matter to the October 2020 term due to the COVID-19 pandemic. The Supreme Court also requested that Google and Oracle submit supplemental briefs addressing the standard of review relating to the fair use defense—i.e., whether the Federal Circuit gave the proper deference to the jury’s finding of fair use when it reviewed it de novo and reversed it...

Conclusion

The Supreme Court is finally set to resolve important questions regarding the scope of copyright protection and the fair use doctrine that could have huge ramifications for the software industry … or is it? As detailed above, the Supreme Court may lean on the standard of review applied by the Federal Circuit to delay further comment on whether Google’s copying constituted fair use. We will update you again after oral argument, which is scheduled for October 7, 2020."

Will the Supreme Court Provide the Fair Use Clarity that IP Law Needs?; IP Watchdog, August 18, 2020

Terry Campo ,  IP Watchdog; Will the Supreme Court Provide the Fair Use Clarity that IP Law Needs?

"As reported in IP Watchdog on August 4 by lawyer and professional lecturer Steven Tepp, the high court will hear Google v. Oracle, a landmark copyright case, in October. Legal experts have labeled it “the copyright case of the century,” and for good reason. Since the case revolves around fair use, it will allow the nine justices to provide judicial clarity over the doctrine the nation’s innovators have desperately needed for decades."

2020 Intellectual Property Primer: Cases to Watch this Year; Lexology, Janaury 27, 2020

Vorys Sater Seymour and Pease LLP - Michael J. Garvin, William H. Oldach III and Aaron M. Williams, Lexology; 2020 Intellectual Property Primer: Cases to Watch this Year

"2020 is likely to be a busy and influential year for intellectual property cases before the United States Supreme Court. The Court is expected to make a number of rulings and decisions that are likely to impact the future landscape of copyright, patent, and trademark law.

Copyright’s Fair Use Doctrine: In what is shaping up to be the main event of this year’s Supreme Court calendar—at least for intellectual property practitioners—the Court will hear oral argument in Google v. Oracle later this year. The case is the culmination of a decade’s worth of litigation involving two of world’s largest tech companies.

Oracle has accused Google of stealing copyrighted pieces of Java source code for use in Google’s Android smartphones. Google has argued that the Java software language Oracle accuses it of stealing is: (1) too functional to be protected by copyright law; and (2) is subject to copyright’s fair use doctrine.

The Supreme Court will consider both issues. The case is particularly noteworthy because the Court has never issued binding precedent related to the copyrightability of software and it has not issued a fair use decision in over twenty-five years."

Here’s How The Supreme Court Can Stop Google From Stealing People’s Ideas; The Federalist, January 17, 2020

David Hogberg, The Federalist;

Here’s How The Supreme Court Can Stop Google From Stealing People’s Ideas

The Supreme Court will rule this year on Google v. Oracle, and when it does, it can rein in both Google and the legal doctrine of 'transformative use,' an abuse of the 'fair use' exceptions to copyright laws.

"Google has long abused intellectual property protections and thus far managed to skirt any severe negative repercussions for it. But the tech giant may soon be held responsible for its borderline illegal behavior.

The Supreme Court will rule this year on Google v. Oracle, a case some say is the copyright case of the century. When it does, it will have the opportunity to rein in both Google and the legal doctrine of “transformative use,” an abuse of the “fair use” exceptions to copyright laws."