On Friday, September 25, 2020, the legal world lost the iconic Justice Ruth Bader Ginsburg of the Supreme Court of the United States. Justice Ginsburg had a long and prolific judicial tenure, with cases spanning a broad legal spectrum. However, she also developed a reputation for writing some of the most important copyright opinions in recent legal history.

Among Justice Ginsburg’s landmark copyright opinions was Eldred v. Ashcroft, 537 U.S. 186 (2003), a case that confirmed Congress’ constitutional authority to extend the protection period for copyrighted works from 50 years after the death of the creator to 70 years. The opinion showcased Justice Ginsburg’s belief in granting broad rights to creators of copyrighted material, as well as granting expansive powers to Congress to legislate the boundaries of these rights. The only current member of the Supreme Court in dissent was Justice Breyer.

In 2014, Justice Ginsburg eliminated a barrier to recovery for copyright infringement plaintiffs by restricting the use of laches in an infringement case brought within the statute of limitations. This case, Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2004), affirmed her commitment to the rights of content creators. Justice Breyer once again positioned himself in the dissent, this time joined by Chief Justice Roberts.

While Justice Ginsburg is famous for her poignant dissents, on intellectual property issues she found common ground with her more conservative peers. With Justices Sotomayor and Kagan joining the majority opinion in Petrella, Justice Breyer appears to be the only liberal-leaning member of the court to regularly side with defendants in copyright infringement cases.

While we reflect on the legacy of Justice Ginsburg in the field of intellectual property, the Supreme Court now has a vacancy. On October 7, 2020, the eight-Justice Court heard oral arguments for Google LLC v. Oracle America Inc., an appeal following Oracle America Inc. v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018), cert. granted. In this copyright infringement case, Oracle has alleged that Google copied a substantial portion of its code after refusing to license Oracle’s program.

At issue was whether Google’s use of numerous sections of Oracle’s code constituted infringement, and whether that infringement was fair use. There is little disagreement that the use of Oracle’s code was indeed infringement. Whether Google could successfully use a fair use defense was the more difficult issue to resolve. The Federal Circuit Court ruled in favor of Oracle, noting that “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”

Were Justice Ginsburg still on the Court, she very likely would have written the majority opinion. Based on her pro-creator record, and the pro-creator leanings of the Court generally, the case would likely be resolved in favor of Oracle.

In her absence, we can look to the remaining justices. Justice Thomas joined Justice Ginsburg’s majority pro-creator opinion in Eldred. Similarly, Justices Thomas, Sotomayor, Kagan, and Alito joined Justice Ginsburg’s opinion in Petrella. Justice Breyer is a regular opponent of the Ginsburg approach to copyright cases, and Chief Justice Roberts joined his dissent in Petrella.

Justices Gorsuch and Kavanaugh have much shorter tenures on the Supreme Court. Justice Gorsuch, known for his textualist approach, does not have a notable history of intellectual property decisions. Justice Kavanaugh has a similarly sparse history of intellectual property opinions.

Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals has been nominated by President Trump to replace Justice Ginsburg, and the confirmation process appears to be going forward at a staggeringly rapid pace. Even with this expedited timeline, Judge Barrett was not seated before the October 7 oral arguments for the Oracle case. Judge Barrett has spent only three years on the Seventh Circuit and has not heard any notable copyright cases in her tenure.

In the absence of Justice Ginsburg, Google LLC v. Oracle America Inc. will probably still be resolved in favor of Oracle. Justices Sotomayor, Kagan, Thomas, and Alito are very likely to be in the majority. While Justice Breyer is likely to dissent, only one of the three remaining Justices must join the majority for Oracle to prevail. Chief Justice Roberts’ dissent in Petrella involved an equitable defense, not an issue of fair use. He is therefore not a reliable ally to Justice Breyer in the Oracle case.

Justice Ruth Bader Ginsburg’s loss has been felt throughout the world. The intellectual property law community is no exception. Justice Ginsburg’s fervent support for creators in the copyright field will be notably absent in future cases, beginning with Google LLC v. Oracle America Inc. However, this loss may not have shifted the Court’s leanings on copyright issues. Should Judge Barrett be confirmed to the Court, one third of the Justices will have very little history of intellectual property opinions. After the Oracle case, we will have our first glimpse into the future of US intellectual property law.

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