When Ruth Bader Ginsburg died on Friday at the age of 87, the country lost a true champion of equality. The story of the “Notorious R.B.G.,” the Supreme Court’s second female justice, has been told repeatedly in media, books, and films including RBG and On the Basis of Sex. From being an architect of the women’s rights movement in the 1970s to spending her later years on the high court fighting for the rights of the less advantaged (see for example her concurring opinion just months ago in Comcast v. NAAAOM), her lifetime of service will deservedly be lionized. But there was a less noticed aspect of Ginsburg — and her untimely loss will influence the course of industry. On Oct. 7, the U.S. Supreme Court holds an oral argument in Google LLC v. Oracle America Inc., the most important copyright case in decades. It’ll now happen without the high court’s most fervently pro-copyright voice.
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.
In Eldred, the Supreme Court had to square the extension of the copyright term with the section of the U.S. Constitution giving Congress the power to promote the progress of sciences and useful arts. In the majority opinion, Ginsburg recounted the numerous times that Congress had previously extended the term. The Supreme Court, led by Ginsburg, held that 20 additional years of copyright protection for any work of authorship was a “rational enactment,” that the high court shouldn’t “second-guess congressional determinations and policy judgments of this order.” Breyer, on the other hand, asked in dissent, “How will extension help today’s Noah Webster create new works 50 years after his death?”
In Petrella, a controversy over Martin Scorsese’s Raging Bull, Ginsburg led the majority in concluding that an unreasonable delay in filing a copyright suit shouldn’t bar a plaintiff from proceeding. “If the rule were, as MGM urges, ‘sue soon, or forever hold your peace,’ copyright owners would have to mount a federal case fast to stop seemingly innocuous infringements, lest those infringements eventually grow in magnitude.” Breyer disagreed and wanted a more robust role for courts in stopping untimely IP enforcement: “One can easily find examples… where plaintiffs have brought claims years after they accrued and where delay-related inequity resulted.”
In Grokster, the two justices squared off again, this time over technology that could be both good and bad. The case was in many ways a follow-up to the famous legal attack over the Sony Betamax VCR, which in the 1980s overcame the entertainment industry’s objections thanks to being capable of substantial noninfringing uses. How does a court decide what’s flagrant and what holds the potential of legitimacy? Even though they nominally were on the same voting side, the justices displayed different approaches to evaluating the evidence. In a concurrence, Ginsburg dismissed any notion of standard and wrote of Grokster that despite declarations from its executives, there was “no finding of any fair use and little beyond anecdotal evidence of noninfringing uses.” Breyer meanwhile wanted a broader application of Sony by putting more emphasis on the possibilities of new tech. Breyer wrote the record revealed “a significant future market for noninfringing uses of Grokster-type peer-to-peer software.” He added, “Sony’s rule, as I interpret it, has provided entrepreneurs with needed assurance that they will be shielded from copyright liability as they bring valuable new technologies to market.”
Ginsburg’s copyright views found favor in the entertainment industry. Upon her passing, Motion Picture Association Chairman Charles Rivkin put out a statement celebrating her “eloquent opinions championing the rights of creators.”
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.
The absence of RBG may also impact which future copyright cases the Supreme Court decides to take up. Currently, for example, the Supreme Court is currently being asked to review a 9th Circuit win for Led Zeppelin over “Stairway to Heaven,” alleged to be an infringement of Spirit’s “Taurus.” Skidmore v. Led Zeppelin looked to be a quintessential Ginsburg case. It’s a dispute that not only tackles the scope of copyright but also social inequities in the system, making it within her zone on double grounds. Her departure likely dampens the prospects of high court review. The same is probably true of Steinbeck v. Kaffaga, which concerns movie rights to the works of Nobel Prize-winning author John Steinbeck and a subject (copyright termination) that has been the focus of increasing litigation over the years.
Ginsburg will long be remembered by those who survive her. That includes her daughter Jane, who teaches intellectual property at Columbia Law School and is the director of the school’s Kernochan Center For Law, Media and the Arts.