With Stephen Breyer's Retirement, The Supreme Court Has Lost A Justice Who Was Wary Of Overly Burdensome Copyright
from the and-that's-too-bad dept
Whatever the (I'd argue unfortunate) politics behind Stephen Breyer's decision to retire as a Supreme Court Justice at the conclusion of this term, it is notable around here for his views on copyright. Breyer has generally been seen as the one Justice on the court most open to the idea that overly aggressive copyright policy was dangerous and potentially unconstitutional. Perhaps ironically, given that they are often lumped together on the overly simplistic "left/right" spectrum -- Justices Breyer and Ginsburg -- presented somewhat opposite ends of the copyright spectrum. Ginsburg consistently was a voice in favor of expanding copyright law to extreme degrees, while Breyer seemed much more willing to recognize that the rights of users -- including fair use -- were extremely important.
If you want to see that clearly, read Ginsburg's majority opinion in the Eldred case (on whether or not copyright term extension is constitutional) as compared to Breyer's dissent. To this day I believe that 21st century copyright law would have been so much more reasonable and so much more for the benefit of the public if Breyer had been able to convince others on the court to his views. As Breyer notes in his dissent, a copyright law that does not benefit the public should not be able to survive constitutional scrutiny:
Thus, I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public; (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies; and (3) if it cannot find justification in any significant Clause-related objective.
(As an aside, the book No Law has a very, very thorough breakdown of how the majority ruling by Justice Ginsburg in that case was just, fundamentally, objectively wrong.)
That said, Breyer wasn't -- as he was sometimes painted -- a copyleft crusader or anything. As Jonathan Band details, Breyer's views on copyright appeared to be extremely balanced -- sometimes ruling for the copyright holder, and sometimes not. Indeed, to this day, I still cannot fathom how he came to write the majority opinion in the Aereo case, which used a "looks like a duck" kind of test. In that case, the company carefully followed the letter of the law regarding copyright, and the end result was that, even by playing within the lines, because it felt like some other service, the court was fine with declaring it to be a different kind of service (even though technically it was not). We are still suffering from the impact of that case today.
So, while I didn't always think that Breyer got copyright cases correct, he was -- consistently -- much more thoughtful on copyright issues that any other Justice on today's court, and that perspective will certainly be missed.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, stephen breyer, supreme court
Reader Comments
Subscribe: RSS
View by: Time | Thread
I know Americans always have to pretend that their country is the best in the world and the poster child for democracy but I find it deeply disturbing that your judicial branch is a political battleground. Democratic president? Liberal judge.
I suppose the only reason it hasn't fallen apart completely is that you can't really force someone to retire/die. The Supreme court of Justice is becoming an extension of party politics and it will erode it's legitimacy. Nothing new if memory serves this happened over slavery in the 1850s.
[ link to this | view in chronology ]
Re:
In many of the US states, Judges are elected, which means that state judges are also politicians and have an additional political dependency.
(Though I will say that when I vote for judges in my particular precinct in Brooklyn, NY, almost always are judges on both the Republican and Democratic tickets (New York State has fusion voting). When that happens, I call those "Soviet Ballots" because you don't really have a choice (though they're not quite like the USSR because you can choose to not vote on those slates and not be punished).)
[ link to this | view in chronology ]
Re:
I think most here would agree that it's disturbing that individuals serving in the judicial system choose politics or even just their own personal opinion over actual law.
Of course pretending that that's somehow unique to the US is just silly. It's true of every country in the world, even independent of democracy. It's a people problem, not a system problem.
[ link to this | view in chronology ]
Re: Re:
The people part of this, is WE dont get to choose the Supreme court.
And those Chosen tend to LEAN to 1 side or other. NOT the middle ground.
When we Do have a coice you see tons of TV adverts for 1 or both sides, and they never cover Any others, as they aint got he money.
[ link to this | view in chronology ]
Re:
The sad thing about all this, is when other Outside the USA can make comments based on what they see.
(excuse, had eye surgery)
When those outside this country can see What we may have missed, or remind us of what WE' were standing for. Its a Shame that we never see whats in front of us.
Would like to go back to late 1800's when the debates lasted Weeks, not a few hours on TV. Where they stood up in front of us, and DEBATED. Not make promises.
Then comes the other side of the coin. WHO and What are we voting for. A president is a small thing, he has only certain powers, he can ask Congress to do/look at things. but the politics that abound make things hard for everything.
The (old) REAL politicians left long ago. They got tired of all the rabble and this side vs that side and the money being thrown around.
There have been some great ideas to control our gov. all of which are in the trash can. I dont think Any of them came to a vote. And we Sit and watch these idiots do their thing and Never threaten them, as they are EMPLOYEES, to this nation.
[ link to this | view in chronology ]
Convenient this happens as thom tillis' pro-hellscape copyright efforts begun this month with the end on the comment period on upload filters next week. Coupled with the earn it act revival and the shop safe bs I get the strong feeling the internet as we know it dies this year.
[ link to this | view in chronology ]
No Law
https://en.wikiquote.org/wiki/David_L._Lange
Thank you for mentioning David L. Lange's book, I love it.
[ link to this | view in chronology ]
I don't consider removing 83 year olds from positions of extreme power unfortunate even if I approve of their politics/judicial philosophy. We should do it far more often. In fact we should make it mandatory to leave at age 80, if not lower so we don't have to hope the old person makes the right decision on their own.
[ link to this | view in chronology ]
Re:
Remove people from their positions based on age (and no other reason)? Why 80? Why not 75? 70? 50?
Why trust anyone over 30?
[ link to this | view in chronology ]
Re: Re:
I guess the logical endpoint of the original AC poster is the Logan's Run movie.
[ link to this | view in chronology ]
Re: Re: Re:
Run, Runner! Run!
[ link to this | view in chronology ]
Re: Re: Re:
No, the book, which limited age to 21. The movie bumped to 30.
I think. I'm way past both now, so I don't... something.
/ties an onion to my belt
[ link to this | view in chronology ]
Re:
"I don't consider removing 83 year olds from positions of extreme power unfortunate even if I approve of their politics/judicial philosophy."
When it comes to politics I'd agree. When it comes to Judges, whose job is literally only to interpret law what I want is someone who's spent 50 years studying what law is, how it works, how it's interpreted and how judgments work out long-time.
The last thing I want as a legal counsel is some 40 year old who's been coasting on his dunning-kruger and is just at the point where their ambitions to "make a mark" are greatest. I want a jaded old fart who's seen it all - twice - who can say "No, we're not doing this because although it may look good for this particular case I can see a dozen cases where this would be fucking horrifying, kiddo".
[ link to this | view in chronology ]