Whither the Supreme Court?

The direction of the Supreme Court is on many people’s minds these days, following the announcement that Justice John Paul Stevens will retire, even though most people admit that his replacement will not sway the political alignment of the Court very much.

One area that is always unpredictable is intellectual property law, because the usual distinctions between liberal and conservative , Republican and Democrat, simply break down.  A case in point is the famous decision in the Sony “Betamax” case that found that home video recording was fair use.  Justice Stevens wrote the majority opinion in that case, which transformed personal technology use and launched a huge revenue stream for the movie companies in spite of their own attempts to suppress the VCR.  In that decision, Stevens was joined by unlikely allies, including Justices O’Connor, White and Burger.  Equally strange bedfellows — Justices Marshall and Rehnquist — found themselves in agreement in the dissent.

The Sony decision had a greater impact on the everyday lives of Americans than many people realize.  It is nearly impossible to imagine what life would be like today if the courts had issued an injunction against the marketing of VCRs, which was the remedy the movie industry first requested.  By the time the case reached the Supreme Court an injunction was no longer on the table, but the impact of Steven’s decision was still immense, and it is cleverly expressed in the title of this piece by Jonathan Band, “Justice Stevens Invented the Internet.”  Jokes about Al Gore aside, this title is not really hyperbole; as Band points out, without the Sony decision, the development of the Internet would have been greatly impeded.  A similar point, with a lot of additional detail about Steven’s other IP decisions and how the majority in Sony was formed, is available in this article about Stevens from the Corporate Counsel site.

So it is hard to predict how a replacement for Justice Stevens will influence the court on copyright matters, and it will probably remain hard even after we know the name of the nominee.  One thing that is certain is that there will be a copyright case before the Court when it opens its next term in October 2010.  Last week the Court finally granted certiorari in the case of Costco v. Omega, about which I wrote last year.  There are some up-to-date details on the case here on the Exclusive Rights blog, but the basic controversy is about whether or not the US “First Sale” doctrine applies to distributions in the United States of copyrighted material that is manufactured overseas and by a foreign company.

There are two very interesting things about this case.  First, the Court initially could not decide whether or not to hear the case, and they asked the Solicitor General of the United States for an opinion.  Late last month she (Elana Kagan, herself apparently a contender to replace Stevens) recommended that the Supremes not hear the case, essentially suggesting that the lower court opinion that I and others fear could have some very negative effects be left in place.  It is odd for the Court to act so quickly in defiance of advice they had sought.  The other interesting thing is that the library community was split on whether or not to file a brief on the cert issue.  Now that the case has been accepted, it will be interesting to see how the library associations line up on the issue, and what they choose to do.  If readers want details so they can form an opinion about what the best course might be, there is lots of information in the links above.