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 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.