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(Photo by Chip Somodevilla/Getty Images)
As you likely know, a few weeks back former Supreme Court Justice Sandra Day O’Connor passed away. There have been lots of discussions about her rulings and her legacy, but the one that caught my eye was from the Disruptive Competition Project, which has a post by Jonathan Band exploring her immense impact on copyright law, mainly in that she helped prevent copyright from reaching absolutely ridiculous levels, pulling it back from the brink and highlighting how it was supposed to be focused on actual creativity, and not just the amount of work put in.
This is, most notably, found in her important decision in Feist v. Rural Telephone, a key case in which O’Connor’s opinion made clear that copyright is not, and never has been, about rewarding people for their labor, but rather was only there as a tool to protect creative output for the benefit of the public.
Justice O’Connor, in an opinion joined by seven Justices (Justice Blackmun concurred in the judgment but did not join the opinion), emphatically rejected the sweat of the brow doctrine, holding that it “flouted basic copyright principles” and “eschewed the most fundamental axiom of copyright law–that no one may copyright facts or ideas.” Justice O’Connor could have based the decision on interpretation of section 101 of the Copyright Act, which defines the scope of protection for a compilation of facts. Instead, she grounded the decision in the Constitution. She declared that “originality is a constitutional requirement,” and that facts cannot receive copyright protection because they are not original. “Facts do not owe their origin to an act of authorship,” she wrote; facts are discovered, not created.
To be sure, the selection and arrangement of facts could be original, and therefore protectable; but the facts themselves “are free for the taking,” regardless of how much effort their collection required. Justice O’Connor recognized that “[i]t may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation.” But this is the “essence of copyright, and a constitutional requirement.” Justice O’Connor explained that under the Constitution, “the primary objective of copyright is not to reward the labors of authors, but ‘to promote the Progress of Science and useful Arts.” Copyright achieves this objective “assur[ing] authors the right to their original expression, but encourag[ing] others to build freely upon the ideas and information conveyed by a work.” With respect to compilations, this meant that “only the compiler’s selection and arrangement may be protected; the raw facts may be copied at will.” Justice O’Connor underscored that “this result is neither unfair nor unfortunate; it is the means by which copyright advances the progress of science and art.”
This is an important point that often needs repeating, especially these days as the new copyright wars are brewing, and many are falsely stating that copyright is about protecting the fruits of one’s labor.
Band’s article also notes that O’Connor also tried to reinforce this point in pressuring Justice Ginsburg (who never met a copyright she didn’t want to expand) to change a line in the NYT v. Tasini case. Once again, O’Connor wanted to make it clear that copyright’s purpose is to serve the public, and felt that Ginsburg’s initial draft misstarted the purpose of copyright:
Justice O’Connor also recommended an important change to Justice Ginsburg’s opinion in New York Times v. Tasini. In a draft of her opinion, Justice Ginsburg stated: “The Copyright Act’s ultimate concern is the way works are presented to, and comprehensible by, the human reader, viewer, or listener.” In correspondence revealed in Justice Stevens’ papers, Justice O’Connor wrote that while she agreed with the point of the sentence in the context of the opinion, she had two concerns about the sentence as written. First,
the “ultimate concern” of the Copyright Act is actually the protection of original expression so as “[t]o promote the Progress of Science and useful Arts,” U.S. Const., Art. I, § 8, cl. 8. While perceptibility is one concern of the Copyright Act in a functional sense, it seems to me that the “ultimate concern” claim is too sweeping and not quite accurate.
Second,
the sentence is somewhat misleading in that the Copyright Act is not at all concerned with the way in which works are presented to and perceived by human beings. … A sentence that links the Copyright Act’s “ultimate concern” to the “way” in which works are presented might be used to attack medium neutrality or for some other misleading purpose. The risk of misuse seems particularly great because the sentence is eminently quotable and appears at an important juncture in the opinion.
On this basis, Justice O’Connor proposed replacing the troubling sentence with a more neutral one. Justice Ginsburg responded later that day, telling Justice O’Connor, “[y]ou are absolutely right.” Justice O’Connor was correct that Justice Ginsburg’s original formulation would have been susceptible to misuse for the reasons she stated.
And, so that’s at least twice that O’Connor helped make sure that the actual constitutional underpinnings of copyright — to better serve the public by promoting the progress of science — was served, rather than the false believe that it served the creators first.
On a separate note, Band also notes that O’Connor “played a critical behind-the-scenes role” in another key case, Sony v. Universal, the case that made VCR’s legal. It’s sad that the core underlying finding in that case, that technologies that have “significant non-infringing uses,” should be allowed, has been whittled away by court after court since. But, still, that fundamental right was important, and apparently O’Connor basically played the deciding role in that case, after initially siding with affirming the 9th Circuit’s ruling that Betamax machines were infringing, before realizing she was actually going the other way:
Justice Marshall’s papers, when opened to the public after his death, revealed that Justice O’Connor had provided the swing vote for the Court’s decision. At the internal conference held by the Supreme Court after the oral argument in 1983, a majority of Justices appeared to support affirming the Ninth Circuit’s finding that Sony contributed to copyright infringement. Justice Blackmun was assigned the task of writing the majority opinion. Justice Blackmun fashioned an opinion that quickly gained the approval of Justices Marshall, Rehnquist, and Powell. Although Justice O’Connor initially supported affirmance at conference, she had difficulty with Justice Blackmun’s draft opinion. Justice Blackmun refused to make changes to his opinion that she requested, declaring that “[f]ive votes are not that important to me when I feel that proper legal principles are involved. It therefore looks as though you and I are in substantial disagreement.”
Justice O’Connor then began working with Justice Stevens, who was writing an opinion supporting reversal with the concurrence of Justices Brennan, White, and Burger. Justice Stevens was willing to accommodate Justice O’Connor’s concerns about the appropriate standard for contributory infringement. Eventually she joined his opinion, and Justice Stevens had five votes necessary to reverse the Ninth Circuit.
Betamax enabled an explosion of innovation that all of us enjoy in our daily lives. All digital devices, including personal computers, DVRs, and iPods, allow consumers to make copies. Justice Stevens’ opinion made clear that the manufacturers of these devices were not liable for infringements made with the devices because the devices were also capable of substantial noninfringing uses – the fair use private copies. This meant that companies could invest in the development of new digital technologies without them incurring the risk of enormous liability for the potential misuses of those technologies by some of their consumers.
These are three of the biggest copyright cases of the last 50 years, and it’s interesting to see the role that O’Connor played, both big and small, in making copyright’s constitutional purpose clear, and making sure that overly aggressive interpretations of copyright weren’t used to shut down innovation and new technology.
Justice O’Connor’s Important Contribution To Copyright Law: Copyright Must Serve The Public First
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