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Justice Scalia’s copyright legacy—and what his loss means for e-book cases

15 February 2016

From Chris Meadows via TeleRead:

Yesterday, the Supreme Court lost one of its most conservative judges at one of the most interesting possible times. There are plenty of articles going around about what this will mean for progressive cases in general, but I’d like to take a quick look at Scalia’s legacy through cases that have had an impact on e-books and related areas. After that, I’ll have some thoughts on what his departure could mean for the two big e-book-related cases currently seeking to be heard by the Supreme Court—USA v. Apple and Authors Guild v. Google.

Scalia was a user of some e-reading technology; in 2010, we noted that he owned an iPad. A quick review of some of the court’s major copyright cases shows that Scalia’s legacy is actually a mixed one, at least insofar as copyright, fair use, and e-books are concerned. In 1994, he joined with all the other justices in the Supreme Court’s last major fair use decision—Campbell v. Acuff-Rose Music, Inc., which concluded that commercial parodies can be fair use and enshrined the four-factor fair use test currently used in case law. That four-factor test is, of course, at the center of the current controversy over the Google Books decision which the Authors Guild hopes to convince the Supreme Court to hear. The case has also been a popular citation in discussions concerning fan fiction and other music parody matters.

In 2001’s New York Times Co. vs. Tasini, Scalia held with the majority, that freelance writers had copyright privileges over works of theirs that were subsequently included in a database without permission or compensation.

. . . .

In Kirtsaeng v. Wiley, another important first-sale doctrine case, Scalia was one of the dissenters who felt that exchange student Kirtsaeng should not have the right to reverse-import cheap foreign editions of college textbooks. And in American Broadcasting Cos. Inc. v. Aereo, Inc., in which Aereo was ruled to be infringing the copyright of the broadcasters whose content it rebroadcast, Scalia wrote the dissent, in which he compared Aereo to the VCR and felt that deciding if new technologies merited modification of the law should be Congress’s job rather than the Court.

It’s perhaps a little surprising, but it seems that Scalia was often on the same side as copyright reformers—helping to define fair use, insisting trademark not be permitted to trump the public domain, and feeling Aereo should have been permitted to continue.

Link to the rest at TeleRead

Copyright/Intellectual Property

7 Comments to “Justice Scalia’s copyright legacy—and what his loss means for e-book cases”

  1. “It’s perhaps a little surprising, but it seems that Scalia was often on the same side as copyright reformers—helping to define fair use, insisting trademark not be permitted to trump the public domain, and feeling Aereo should have been permitted to continue.”

    Scalia had a conservative interpretation of the Constitution, for sure, but he was primarily a constitutionalist, not a conservative, when it came to his rulings and writings. He interpreted the law, not primarily based on his own personal beliefs on what was right or wrong, but on precedence and what he believed the intent of the law was.

    The things listed are evidence of this, especially with Aereo.

  2. Perhaps before we morn the lose of what he meant, we should wait and see what we might gain in his replacement?

    Morning the lose of the man I have no problem with, but when out with the old and in with the new you won’t know any lose/same/gain until the new gay/gal rules on something …

    • Well, the thing is, if we wait to see what we might gain in his replacement, we could be waiting at least a year. 🙂

      As I noted toward the end of the article, in the part PG didn’t quote, simply having an 8-Justice court could be quite significant in terms of the cases that are coming up.

      • Rather than issue 4-4 opinions, I expect the court will defer decisions on such cases until a new justice is appointed and conformed, Chris.

        They make their own procedural rules and can defer decisions for as long as they want to do so.

      • We shouldn’t be waiting a year. Both the sitting President and the sitting Senate have a constitutional responsibility to follow process to fill the seat.

        As I understand it, and PG can correct me if I am wrong.. they actually can still issue opinions as an 8 judge SC. However, in instances where the ruling is split 4-4, then they are treated by case law to have made no decision at all, except to affirm the decision by the lower court that was referred to them. I don’t think the 4-4 decision can be cited by future cases, either.

        As PG noted though, they are likely to try to refrain from split cases if they can, just to keep things from getting messy.

  3. >>but when out with the old and in with the new you won’t know any lose/same/gain until the new gay/gal rules on something …<<< Allen F.

    There's a possibility the new Supreme could be a gay gal? Cool! 😉 LOL

    • Was thinking ‘guy’ then figured I’d get roasted if I didn’t suggest it might be a woman too, and didn’t notice the a/u until your lol …

      Though they’re trying to get Billy’s ‘better’ half in the top slot — so a gay gal might be doable too …

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