During the April 22 oral argument in Am. Broad. Cos., Inc. v. Aereo, Inc., Justice Stephen G. Breyer admitted to Aereo’s attorney that he was concerned about unintended consequences of the court’s ultimate opinion in the copyright infringement case.
“I don’t understand what the decision for you or against you when I write it is going to do to all kinds of other technologies,” Breyer said 78 DER A-18, 4/23/14. “I’ve read the briefs fairly carefully, and I’m still uncertain that I understand it well enough. That isn’t your problem, but it may turn out to be.”
Breyer’s last line elicited laughter from the audience and a confident retort from David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC, Washington, D.C. Frederick said he was going to “try to make it [ABC’s] problem.” And indeed if Breyer writes the opinion then it likely will not be Frederick’s problem but the broadcasters’ problem.
“I can’t see Breyer writing a decision where the broadcasters win,” Deidré A. Keller, an associate professor at Ohio Northern University Law School, told Bloomberg BNA. “I don’t think he would write an opinion that could be the foundation for a later decision that holds that all of these user-based cloud services that he was concerned about are also infringing.”
If, on the other hand, Justice Ruth Bader Ginsburg writes the opinion then Frederick and Aereo might indeed turn out to have a significant problem.
“It’s easy to predict that Ginsburg will vote in favor of copyright owners in Aereo,” Tyler T. Ochoa, a professor at Santa Clara University School of Law, told Bloomberg BNA.
Petrella Unearths Raging Fault Line on Copyright.
Ginsburg and Breyer have been clashing on copyright cases for more than a decade, splitting in four of the high court’s most recent copyright rulings. And in all four cases, one has penned the majority opinion and the other has authored a dissent.
Most recently, in Petrella v. Metro-Goldwyn-Mayer, Inc., Ginsburg’s majority opinion held that a copyright holder’s infringement claim could not be barred by the equitable doctrine of laches so long as it was brought within the Copyright Act’s three-year statute of limitations period 102 DER A-15, 5/28/14; 97 DER A-21, 5/20/14.
Petrella was a sweeping victory for copyright holders, particularly since the court explicitly approved of the wait-and-see approach to litigation whereby a plaintiff sues only after a defendant’s alleged infringement has become profitable, thus making costly litigation worthwhile. “There is nothing untoward” about that approach, Ginsburg said. The court therefore reinstated an infringement claim that was brought by the daughter of a man who co-wrote a screenplay about Jake LaMotta’s life that was source material for the movie “Raging Bull.”
Breyer would have left in place a court’s ability to rely on the doctrine of laches to curb a copyright holder’s ability to sue for infringement when such claims would unfairly harm the defendant. “Where a plaintiff unreasonably delays in bringing suit and consequently causes inequitable harm to the defendant, the doctrine permits a court to bring about a fair result,” Breyer said in his dissent.
“He really believes that tying up material under copyright is inimical to the ability of future authors to engage in creative activity,” Roger E. Schechter of the George Washington University Law School told Bloomberg BNA. “His willingness to entertain a laches defense for an otherwise timely claim seems to me consistent with that position.”
Ginsburg Holds 3-1 Edge in Disputed Copyright Cases.
Petrella was just the latest in a string of copyright cases to have showcased a fight between two justices who, according to data found on SCOTUSblog.com, have otherwise voted in agreement approximately 80 percent of the time over the last five years.
In addition to Petrella, Ginsburg also wrote for the court in Eldred v. Ashcroft and in Golan v. Holder.
The 2003 Eldred decision held that Congress did not violate its authority under the Constitution’s copyright clause by extending the term of copyright protection for existing copyrights. In 2012, Golan held that it was also constitutional for Congress to grant copyright protection to foreign works that were not granted protection before the Berne Convention, even if doing so removed those works from the public domain.
Breyer dissented in each case, arguing that the extension of copyright terms on existing works does seemingly nothing to “promote the progress of science,” which is the mandate of the Constitution’s patent and copyright clause.
The lone copyright decision that Breyer authored was in Kirtsaeng v. John Wiley & Sons Inc., where the court held that the first sale doctrine, as codified at
Ginsburg’s dissent argued that the court thwarted Congress’s intent by failing to give effect to another provision of the Copyright Act,
The Daughter and the Tenure Article.
The four copyright cases on which Breyer and Ginsburg have split have myriad factual and procedural differences. But when read together they provide an almost-bright line rule for how the two justices may vote on contentious copyright issues.
“There is a really cynical way to read this split: that Ginsburg always comes down on the side of content owners and that Breyer never does,” Keller said. Such a reading, she said, “is not without some textual support” given the opinions each justice has authored.
In fact support for the notion that Breyer is skeptical of broad rights for content owners goes well beyond his handful of opinions in copyright cases. Indeed, Breyer’s feelings on copyright have been known for over 40 years.
“Justice Breyer’s tenure article at Harvard was entitled ‘The Uneasy Case For Copyright,’ ” Professor Pamela Samuelson of the University of California, Berkeley, told Bloomberg BNA.
Published in 1970, the article “challenged the empirical basis for the assertion that copyright provides a financial incentive for the creation and distribution of new works of authorship,” Ochoa said.
Breyer’s views on copyright have hardly changed since 1970. He still “comes at IP issues with a more economic approach,” Samuelson said. “His dissent in Eldred, for instance, observed that granting rights to an extra 20 years of copyright could not incentivize authors as to works already in existence.”
Ginsburg’s thoughts on copyright are not memorialized in a decades-old law review article, but they may not be entirely opaque either.
“Justice Ginsburg may have been influenced in her thinking by her daughter Jane who has been a strong proponent of author’s rights,” Samuelson said. “Certainly her opinions strike me as consistent with what Jane would write if she was on the court.”
Of course, if one Ginsburg is influencing the other it is hard to know whether it is the justice influencing the professor or the other way around. All that can be certain, Ochoa said, is that Justice Ginsburg “has a long record of voting in favor of copyright owners” and Professor Ginsburg “has written extensively on copyright, and Jane also generally favors strong IP protection.”
The younger Ginsburg has been very critical of the Second Circuit’s decisions in both Aereo and Cablevision—the 2008 case that essentially paved the way for Aereo to launch operations in 2012 97 DER A-21, 5/20/14.
The Deferential Justice vs. the ‘Copyright Minimalist’.
In any event, Keller suggested that there may be a more nuanced way to read the split that relegates the perception that Ginsburg favors content owners—and that Breyer favors minimum protection—to the background
“I think the fight that they are really having is about who gets to make policy decisions in the copyright realm,” Keller said. “It is about who gets to test whether legislation makes sense.”
“Ginsburg, I think, takes the view that in matters of copyright law Congress has a great deal of discretion, and she tends to opt for the outcome that defers to Congress,” Schechter said. He added:
If Congress wants life plus 70 [years of protection], it gets it. If it wants restoration of foreign copyrights, it gets it. Among other things, this position has the virtue of allowing her to challenge the conservatives on the court when they refuse to defer to Congress on other matters.
Professor Christoper J. Sprigman of New York University School of Law said Ginsburg’s opinion in Petrella offered a clear glimpse into her belief that Congress is the appropriate entity to strike a balance on copyright policy. The balance Ginsburg saw in that case was Congress’s decision to allow a plaintiff to only recover for infringements that occurred within the three-year statute of limitations. Thus, while the copyright term itself may be long, a plaintiff’s window to recover for infringement has been carefully prescribed by Congress, the court said.
“Ginsburg views copyright through the lens that the Copyright Act is largely benign and basically strikes the balance between private rights and public access,” Sprigman said.
“Breyer, on the other hand, thinks a lot of the bargains that have been struck in the Copyright Act are distorted bargains that were struck at a time when Hollywood and the recording industry wrote the copyright law,” Sprigman said.
Lateef Mtima, a law professor at Howard University told Bloomberg BNA that “Golan demonstrates the quintessential conflict between how Ginsburg and Breyer approach copyright.” Specifically, Mtima noted how Ginsburg’s majority opinion was wholly dismissive of the petitioner’s argument that the public gets vested rights in works in the public domain. Golan had argued that Congress interfered with those rights by taking those works out of the public domain. Ginsburg, however, said Golan’s view of copyright law was backward.
“Ginsburg said the only property right we are concerned with in copyright comes into existence when an author creates,” Mtima said. “To me that coalesces what her view on copyright is: that the only people who have protectable rights under copyright are the authors.”
Conversely, Mtima said Breyer’s dissent in Golan painted copyright as “a necessary evil monopoly” that should give authors “the most limited protection necessary to spark creativity.”
“It is pretty clear that Breyer is a copyright minimalist,” Schechter said. “He believes that any copyright protection in excess of the absolute minimum necessary to encourage creative activity is, among other things, constitutionally dubious.”
Thus, while Ginsburg’s opinions have exalted congressional intent, Breyer has generally sought to preserve the court’s role in making sure that copyright policy ultimately serves its constitutionally-imposed role of promoting the progress of art and science.
Kirtsaeng‘s ‘Alternative Congressional Intent Narrative.’
With that view in mind, the lone case where Breyer’s view prevailed is notable because in that case the six-justice majority concluded that Congress intended for the first-sale doctrine to have a non-geographical interpretation. Keller said:
He wins in Kirtsaeng because he can tell this alternative congressional intent narrative. In all of the other cases he has to go out on a limb and say that the court has a say in what is going on. I think that is a losing proposition. The cases have in fact borne out that when that is the narrative—a judicial activist narrative—then he is going to lose. He needs a cognizable congressional intent narrative of his own to win.
The ‘Congressional Intent’ Card in Aereo.
ABC’s attorney, Paul D. Clement of Bancroft PLLC, Washington, D.C., spent much of the April 22 argument trying to get the justices to focus on what he said was Congress’s intent when it enacted the 1976 Copyright Act. Specifically, Clement argued that a plain language reading of the transmit clause shows that Congress intended for services that reroute broadcast signals to their subscribers to be deemed public performers of those broadcasts.
But Mtima noted that a number of the justices pushed back on Clement’s characterization of the congressional intent behind the transmit clause. The problem, Mtima said, is that the statute itself is not at all clear.
“In this case multiple courts have looked at the same language in the statute and come out differently,” Mtima said. “There is no way that anybody can say that one interpretation of a public performance under the transmit clause is clearly right and that other interpretation is clearly wrong. Both interpretations are equally plausible.”
For its part, Aereo did not aggressively advance its own congressional intent narrative but instead tried to capitalize on the statute’s ambiguity.
“Aereo has seemed to emphasize the policy and the open-endedness of the meaning of the word ‘public,’ as interpreted in lower court opinions,” Professor Shubha Ghosh of the University of Wisconsin Law School told Bloomberg BNA. But Ghosh said it was far from certain that Aereo’s gambit would payoff.
“Following a more deferential approach to Congress, as Justice Ginsburg has done, would suggest a loss for Aereo,” Ghosh said, noting that the court is more likely to look at Aereo’s system as a whole to find a public performance rather than focusing on the individual private transmissions made by each antenna.
Will They Agree to Disagree as in Grokster?
There was general agreement among the academics that Bloomberg BNA spoke to that Ginsburg’s approach was likely to prevail in Aereo.
Mtima, however, offered one caveat that he said could potentially force Ginsburg to alter her approach. In the other cases, “Ginsburg’s methodology has been to look to the statute to help her divine congressional intent in a plain vanilla sort of way,” Mtima said. But not only is the statute unclear, but congressional intent in this case is particularly hard to ascertain in part because Congress’s creation of a compulsory license to allow cable companies to make public performances of broadcasts suggests that Congress may not have wanted to give broadcasters complete control over cable retransmissions.
“If Ginsburg deviates from her normal methodology it will be on the basis that the language in the statute is not clear, and that the creation of the compulsory license indicates that Congress thought cable retransmissions were not something that should be the exclusive province of authors,” Mtima said.
Ghosh said that even if Ginsburg has to alter her methodology there is virtually no chance that she will rule in favor of Aereo. “I simply can’t think of a single situation that would result in Ginsburg ruling that this is not a public performance,” Ghosh said.
Ochoa said Breyer may even join a judgment against Aereo so long as the decision is narrow enough to fully protect cloud computing companies from infringement claims.
“This may be a situation like in Grokster where they agree on the result but disagree on the reasoning,” Ghosh said, referring to the court’s 2005 opinion in MGM Studios, Inc. v. Grokster, Ltd.. Although unanimous, both Breyer and Ginsburg authored concurring opinions that were widely divergent on how far the inducement doctrine should extend to hold sellers of a device liable for users’ infringements.
Sprigman noted that the Copyright Act is silent on the issue of secondary liability, which he suggested is a bad omen for Aereo even if the court is unable to discern congressional intent.
“Inducement liability didn’t exist before Grokster and so I expect this case to be an exercise of the Supreme Court doing what it often does: make law,” Sprigman said. “I expect the court will find a way to thread the needle in a way that finds that Aereo is making a public performance and is thereby in need of a license, but that Cablevision is not engaging in a public performance.”
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