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."
