20050829_ave_o44_849.jpgYesterday, 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 the challenge to the most recent copyright extension, Eldred v. Ashcroft in 2003, Scalia again came down on the majority side, which held that retroactive term extensions can satisfy the “limited times” provision in the copyright clause.

Not all the copyright cases were well-known ones, however. In Dastar Corp. v. Twentieth Century Fox Film Corp., the Court decided in favor of a repackager who had released an edited-down version of a Fox TV series that had passed into the public domain. Scalia wrote the majority opinion for that case, in which he found that trademark law couldn’t be used to assert control over a property that had passed into the public domain—because that would effectively render trademark into an eternal form of copyright. It’s thanks in large part to this decision that the more recent decision finding most Sherlock Holmes works were in the public domain in the US has teeth, and subsequently Holmes was able to cross over with Hellraiser.

In MGM Studios, Inc. v. Grokster, Ltd., Scalia was again part of a unanimous court which held that Grokster had been intended to be used for infringement, and hence the company was liable for what its users did with it. In Omega S.A. v. Costco Wholesale Corp, concerning the reverse importation of discount watches, Scalia was part of a deadlocked 4-4 court because Kagan recused herself. Consequently, the lower court decision stood and no precedent was made. The decision doesn’t even say what side Scalia was even on in that case, but I’ll return to the deadlock notion in a bit.

In Golan v. Holder, Scalia was part of the majority who ruled that a law which effectively pulled foreign works out of the public domain to comply with treaty requirements did not exceed Congress’s authority under the copyright clause. (This case was cited by the Wikimedia Foundation in support of its decision to pull The Diary of Anne Frank a few days ago.)

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. Of course, the cases where he wasn’t were some of the more important ones—most notably Eldred v. Ashcroft and Golan v. Holder.

It’s a bit tempting to wander off down the political rabbit hole and speculate on whether the Republicans in the Senate will allow any nominee Obama proposes during the last 11 months of his Presidency even to come up for a vote. It seems likely that they will try to block such nominations—which could in turn be a bad move for them when election time comes around and the Democrats get to point the finger and accuse them of crippling one of the branches of government for political gain. (Or then again, perhaps Obama could appoint a new Justice while the Senate is still in recess—it’s been done before; Eisenhower did it three times, including while seeking reelection.)

But the more important thing is, the current Supreme Court has 4 conservative and 4 liberal Justices. If they do leave the Supreme Court down by one during the next year, it could lead to a lot of 4 v. 4 deadlocked cases that wouldn’t set new precedent—and that would leave the decisions of the more liberal lower courts intact.

But the big question for TeleReaders right now is, what will Scalia’s death mean for those two e-book cases I mentioned, USA v. Apple and Authors Guild v. Google. Last night I checked with Andrew Albanese, whose insightful coverage of these court cases has appeared in Publishers Weekly and in his e-book The Battle of $9.99. Albanese feels that the Google case was already such a long shot to get certiorari—that is, to be accepted to be heard by the Supreme Court—that Scalia’s absence probably wouldn’t have any great impact on the matter.

But he felt it could matter for the other case. “In terms of Apple, I think this could have an effect. It takes four justices to grant cert, and Apple was surely counting on Scalia as a yes vote. So, I think Apple’s chances of getting cert probably just went down by one.” He wasn’t prepared to speculate on how it could affect the final vote in such a case if it did gain certiorari. However, he had been told by more than one lawyer that if Apple did get onto the Supreme Court’s docket, it meant the Supreme Court wanted to make some new law.

Ironically, even if the case does get certiorari, it means that the court is less likely to be able to make that new law—a 4 to 4 deadlock tie is a real possibility. If that happened, the appeals court decision affirming Judge Cote’s original decision would stand, no new law would be made, and Apple would have to start paying out settlement money. Of course, that will happen anyway if certiorari is denied.

It will be interesting to see how this will all play out. Scalia’s loss right at this particular hour is going to add stakes to the Presidential election and make a lot of the upcoming political circus more interesting—and it should do the same for those e-book-related cases, should either or both of them end up before the down-by-one Supreme Court.


    • If the Supreme Court does chooses not to hear the case or, if the case is heard and it is a 4-4 deadlock, then what will happen is that Apple will pay out the agreed amount. Soon after, it will be ancient history and we will get on with our lives. Who talks about all those legal battles between Apple and Samsung these days? No one. Its already history. Move on.

      There will be something else for us to show our bias when we are ignorant of all the legalities of a particular case.

      • LOL no one is moving on – not Teleread, not me, not those affected by the other cases – immigration, coal plants, etc
        A “4-4 court tie goes to the lower court” is NOT what the constitution had in mind.
        Sure it happens when a judge has to withdraw from a case because of conflict of interest, but that is the exception not the norm.

        • LOL you forgot the children, doesn’t anyone think of the Children anymore?

          To be able to know that Justice Scalia was going to side with Apple on this is very presumptuous by anyone. So for anyone to state that Cote wins on a technicality is based on nothing but guesses which are founded on bias.

          To have a stab at the reasons as to why Justice Scalia would side with Apple or against Apple is very reasonable and it is filling a lot blogs. It seems that many people have an opinion.

          Apple may have thought that Justice Scalia would see in their favor but that would just be a calculated guess. They have nothing to lose but plenty to gain if they were correct.

          Lets see how this plays out and when it ends, make you statements and then we can all move on until the next critical court case involving our favourite companies.

          • Excuse me, I was commenting on the post –

            “Ironically, even if the case does get certiorari, it means that the court is less likely to be able to make that new law—a 4 to 4 deadlock tie is a real possibility. If that happened, the appeals court decision affirming Judge Cote’s original decision would stand, no new law would be made, and Apple would have to start paying out settlement money. Of course, that will happen anyway if certiorari is denied.”

  1. Appreciate your well-presented analysis. Thank you.

    The new appointment will be very interesting to watch and hopefully completed by summer. It is bound to be contentious but it is critical that it is filled as soon as possible so the Court’s work can be done.

  2. Actually, the smartest move the Republicans could make would be to block any Obama nominee and do so very openly. About twice as many Americans resent how the Court has been shoving aside democratic processes than want an activist court. There’s also a long tradition among both parties of doing just that in an election year. It is a winner for the blocker, since it energizes voters and gives them a reason to give the country a president of the other party. In this case, almost no one likes Obama, so his attempts to get sympathy will fall flat.

    Kelo v. City of New London, for instance, still ticks of those who own their own homes. Kelo was a nurse whose home was being taking to build fancy condos. That taking was approved by the Court’s Democrat-appointed liberals and Republican-appointed justices (i.e. Souter), who’d passed muster with liberal gatekeepers. That sent a strong message to homeowners. Fight to keep any liberal-approved justice off the Court. The liberal motives were all too obvious.

    Liberal governance costs a lot of money, so liberals want cities to have the power to bulldoze homes and small businesses, replacing them with whatever will generate more tax revenue. Historically, eminent domain hasn’t allowed that. It could only be used for actual public use, such as a highway. Kelo means the government can grab your home and sell it to anyone who’ll pay them more in taxes. Generally that means the fat cats who pay off politicians.

    And don’t underestimate how much that shapes thinking. Middle-class flight from Detroit grew after the city razed Poletown, so GM could build a factory. Homeowners saw that as meaning that no home could me safe and left the city for the suburbs. We all know the results of that. Recently, the Michigan Supreme Court reversed that reasoning, but that was too late for Detroit. The people had gone and weren’t coming back. Block after block of homes were abandoned.


    The site of that Kelo dispute is much the same. The developer the city wanted to pander to backed out.


    Chris, you still seem under the impression that the mainstream, meaning heavily Democratic, press still sets the agenda for politics in the country, that we still live in an era when news in American is what Walter Cronkite likes in the NY Times. That’s no longer true. Trump illustrates that all too well. The guy is obviously a jerk, but he also demonstrated that you can thumb your nose at press disdain and still do well. Make no mistake. Lots of politicians are learning that you can do that and do well.

    I recently watched NBC news at someone’s house, something I’ve not done in years. The bias was obvious. A five-minute feature gave absolutely no evidence for the point it was trying to drive. None, zero, zip, nada. They didn’t even bother to talk to someone on the other side. But even more intriguing were the ads. Virtually all were prescription drugs for elderly people. The average NBC News viewer must be well into his sixties. They’re about the only ones watching TV news or reading newspapers. The rest get their news, if they read it at all, online where the fare is far more varied.

    Keep in mind something else. In the last few years, we’ve seen a radical transformation in American politics not seen in the lifetime of most. After the 2008 election, the Democrats had the White House and filibuster-proof majorities in both houses of Congress. Their efforts to ram through unpopular legislation, including Obamacare, has totally flipped politics. You have to go back to the 1920s, when people were ticked off at Woodrow Wilson, an activist, progressive Democrat (and hardcore racist), to find a time when Republicans controlled as many levels of government. That’s why Obama has had to abuse executive orders in unconstitutional ways to get what he wants. It’s why every state has more people who consider themselves conservative than liberal.

    The Republican’s number one problem has been that they can’t deliver change because Obama’s vetoes are hard to override. All those people, the clear majority who’ve shifted the country Republican, haven’t seen much results. The more ticked off are Trump supporters. The rest want results. They’ve seen liberalism and don’t like it. They want their homes to be safe from eminent domain. They want to get health insurance that’s not dictated by federal bureaucrats. They want immigration to be carefully control so terrorists can’t get in. They don’t want Catholic nuns to be forced to pay for abortions. The list goes on.

    In short, not only are Republican inclining voters more likely to vote, a big battle over the critical fifth vote on the Supreme Court will energize them still more. Keep in mind that quite a few Democrats lost their next election for voting for Obamacare. As far as I know, no Republican did. This battle over that critical seat on the Supreme Court will accomplish much the same. If there is a fight, Democrats will lose and Republicans will win.

    Besides, between now and the fall the Democrats are going to be tied up in this Hillary v. Bernie squabble. Little else will interest them. As the Greeks observed long ago, whom the gods would destroy, they first make mad (insane).

  3. One more remark, here’s an article which claims the Detroit’s use of eminent domain has created the most blighted neighborhood in Detroit, which is saying a lot that’s very bad.


    Note all the boarded up businesses and homes That’s what the liberal and liberal-approved justices voted for in Kelo. It’s why Scalia dissent with Kelo matters. It’s why he needs to be replaced by someone like him.

    Legal comments on Wikipedia include these:

    During arguments, several of the Justices asked questions that forecast their ultimate positions on the case. Justice Antonin Scalia, for example, suggested that a ruling in favor of the city would destroy “the distinction between private use and public use,” asserting that a private use which provided merely incidental benefits to the state was “not enough to justify use of the condemnation power.”


    The principal dissent was issued on 25 June 2005 by Justice O’Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas. The dissenting opinion suggested that the use of this taking power in a reverse Robin Hood fashion— take from the poor, give to the rich— would become the norm, not the exception [noting]:

    “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”


    This link show what the Kelo development looks like today—empty lots, noting:

    Traditionally, these transfers of property, or eminent domain, had only allowed governments to acquire private lands in order to build a public structure like a school or highway. The Constitution permits seizures for such instances of “public use,” but the Supreme Court decision expanded that power to allow governments to acquire people’s land with “just compensation” for a “public purpose,” which in Kelo meant the government’s belief that a different owner might bring in more tax revenue.

    “Even that chilling premise has failed in New London. Instead of generating more economic activity, New London now has a massive plot of unused land.”

    Read more at: http://www.nationalreview.com/article/370441/nine-years-after-kelo-seized-land-empty-alec-torres

    Notice what happened in Poletown and New London. If you like your home or don’t want the one you may have some day to be taken away, you should be with the Republicans on this dispute. And keep in mind that those who favor “large corporations” in an eminent domain dispute will favor them in copyright disputes too. Hollywood and Manhattan own lots of copyrights and are very liberal.

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