Feature

Ginsburg Remembered As Steadfast Pro-Copyright Voice

Law360 (September 21, 2020, 11:26 PM EDT) -- Justice Ruth Bader Ginsburg's steadfast support for copyright owners was one of the hallmarks of her U.S. Supreme Court tenure, and her decisions strengthening copyright protection will have a lasting impact on the law, experts say.

During her 27 years on the high court, Justice Ginsburg, who died Friday at age 87, authored opinions that extended copyright time limits and restored protection to works that had fallen into the public domain, and was recognized as a vocal proponent for the rights of content creators.

"Certainly that was the thread in her opinions: She really did have a long record of finding in favor of copyright owners," said Aaron Moss of Greenberg Glusker Fields Claman & Machtinger LLP.

While the public generally views the Supreme Court through a polarized and partisan lens, intellectual property cases tend not to break along those lines, and Justice Ginsburg's copyright decisions illustrate that clearly, said Mark McKenna, a professor at University of Notre Dame, the Law School.

McKenna said it's possible to imagine a world in which the conservative justices support copyright laws as a protection for property owners while the liberal wing is more skeptical, but "the most pro-copyright, and the advocate for the strongest and longest protection, was Ginsburg."

Her most frequent sparring partner on copyright issues was Justice Stephen Breyer, with whom she was ideologically aligned on most other major issues but who takes a more skeptical view of copyrights and intellectual property.

The numerous cases where the two justices were on opposite sides on copyright law show that it "is an area in which reasonable people can truly disagree, and they do," said David Post, a retired professor of intellectual property law at Temple University's Beasley School of Law who clerked for Justice Ginsburg at both the D.C. Circuit and the Supreme Court.

"It's always good for the court to have two justices who stake out positions as strongly as they can," he said. "You try to get people over to your side, so you write as persuasively as you can, and I think that's good for the copyright debate."

The extent of Justice Ginsburg's impact on copyright law is highlighted by a Friday statement on her death by Charles Rivkin, chairman of the Motion Picture Association.

"She was a champion for equality, a fierce defender of free speech, and a passionate supporter of the arts," he said. "Justice Ginsburg was also a towering figure in the world of copyright, where she authored important and eloquent opinions championing the rights of creators."

Her most significant copyright decision was the 2003 ruling in Eldred v. Ashcroft , which upheld the Copyright Term Extension Act, a law that extended existing copyrights for 20 years beyond what had been allowed under a previous law.

Noting that the U.S. Constitution specifies that Congress must set "limited times" for copyrights but left those times to the discretion of lawmakers, Justice Ginsburg concluded that since the extension did not create perpetual copyright, "Congress acted within its authority and did not transgress constitutional limitations."

The Eldred decision was "an important moment in copyright history," Post said.

"When the history of copyright law in the United States is written, there will be a little chapter on that case, because it was a chance, which the court did not take, to give a kind of scrutiny to copyright law that it had never really been given," he said.

Instead of analyzing how extending copyright terms would impact the right to expression, Justice Ginsburg instead held that it was within the purview of lawmakers to do that, leaving future debates about whether copyright is "too long or too strong or too big" to be hashed out in Congress, Post said.

Justice Ginsburg authored a related opinion in the 2012 case of Golan v. Holder , which upheld a law that gave copyright protection to foreign works that had been in the public domain. The law provided for copyrights to cover works created in other countries that were not covered by U.S. copyright, and the high court rejected arguments that it was a violation of free speech rights to restrict access to works that had previously been free to use.

"Neither the copyright and patent clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit," Justice Ginsburg wrote.

In 2014, she wrote for the majority in Petrella v. Metro-Goldwyn-Mayer , in which the Supreme Court revived a copyright case brought by the daughter of a screenwriter who claimed his work was the basis for the film "Raging Bull." The decision eliminated a defense that accused infringers had used against copyright suits that are filed after long delays.

Although it found against a Hollywood studio, that holding "is consistent with her view of giving strength and protection to copyright owners, because really that's who benefits from that case," Moss said.

Those decisions and others she penned, like the 2001 case of New York Times Co. v. Tasini , which found publishers infringed the copyright of freelance writers by including their work in electronic databases, reflect a consistent view of the value of copyright to creators, McKenna said.

"I think she viewed copyright as an important tool for authors, so she was disposed to think that way about copyright cases in general," he said.

The origins of Justice Ginsburg's strong interest in copyright protection are a bit mysterious, since her legal work before becoming a judge didn't intersect with copyright.

Some speculate that her renowned love of opera and the arts gave her a sense that copyright is an important part of the cultural landscape, or that her views were informed by conversations with her daughter Jane Ginsburg, a Columbia Law School professor who specializes in copyright law. In 2015, the two were inducted together into the hall of fame of Chiefs in Intellectual Property, a group for women in IP.

Post said that one of his many regrets upon learning of Justice Ginsburg's death was that he never took the opportunity to ask how she developed her views on copyright.

In his years clerking for her, the only copyright case they worked on was a unanimous 1994 decision, which Justice Ginsburg didn't write, that went against the owner of the copyright to Roy Orbison's song "Pretty Woman" and held that 2 Live Crew's raunchy rap parody could be fair use. More than any discussion of copyright, Post said his most vivid memory of the case was the experience of listening to the accused work with the justice, long before she acquired her rapper-inspired "Notorious RBG" nickname.

"I was there when Justice Ginsburg would listen to her first rap song," he said with a laugh. "It was a little bit uncomfortable, but she was actually kind of impressed as I recall. She sort of liked it."

Although Justice Ginsburg infrequently wrote about trademark law, it appears her views were aligned with her copyright perspectives, judging from her final majority opinion, an 8-1 June ruling that Booking.com could register its name as a trademark.

By rejecting the U.S. Patent and Trademark Office's argument that adding ".com" to a generic term is not protectable, that decision "is going to have long, deep reaching implications for trademark law" by creating a path forward for companies that previously could not register their name as a trademark, said David Steele of Tucker Ellis LLP.

"She basically created from whole cloth, if you will, an entire new area of marks that would otherwise have been viewed as generic," he said.

Justice Ginsburg did not give patent owners the same level of strong support she gave copyright owners, and many of her opinions on patent law tended to favor those challenging patents.

For instance, she wrote for the unanimous court in Nautilus v. Biosig , a 2014 decision that made it easier to argue that patents are invalid as indefinite, and for the majority in Thryv v. Click-To-Call , a ruling from April that eliminated an argument patent owners had used to challenge the invalidity decisions by the Patent Trial and Appeal Board.

The opinions she wrote on patent law, and others where she joined the majority of an often unanimous court, were consistent with the Supreme Court's trend in recent years of shifting the balance away from patent owners, said Thomas Hedemann of Axinn Veltrop & Harkrider LLP.

"She's been with the majority of the court as a whole in making the environment less favorable for patentees," he said.

While it may not be the most important part of her legacy, Justice Ginsburg's work on intellectual property law will remain significant and influential, Steele said.

"I think her contribution to IP will always be overshadowed by her tremendous accomplishments in other areas of law," he said. "But her contributions in intellectual property shouldn't be ignored or forgotten. I think they're profound."

--Editing by Alanna Weissman and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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