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.

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Comments on “With Stephen Breyer's Retirement, The Supreme Court Has Lost A Justice Who Was Wary Of Overly Burdensome Copyright”

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Anonymous Coward says:

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.

Samuel Abram (profile) says:

Re: 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).)

This comment has been deemed insightful by the community.
Cdaragorn (profile) says:

Re: 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.

ECA (profile) says:

Re: 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.

This comment has been deemed insightful by the community.
Federico (profile) says:

No Law

To grant a monopoly in speech to one person is to abridge that speech as to all others. That is precisely what Congress may not (and cannot) do. That power the First Amendment withdraws on the fact of the text. Read absolutely, the text does not admit of any defense or justifications in the case of abridgement. No law simply means no law.


Thank you for mentioning David L. Lange’s book, I love it.

Anonymous Coward says:

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.

Scary Devil Monastery (profile) says:

Re: 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".

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