21 October 2020

Remembering Ruth Bader Ginsburg and Copyright

By Amalyah Keshet, Senior Consultant

Photo by Ian Hutchinson on Unsplash

For every reason imaginable, the recent death of US Supreme Court Justice Ruth Bader Ginsburg (RBG) shouldn’t go unmentioned – even in the realm of copyright. Justice Ginsburg leaned in general towards strong copyright protection; unsurprisingly, she found favour in the entertainment industry. Upon her passing, Motion Picture Association Chairman Charles Rivkin put out a statement celebrating her “eloquent opinions championing the rights of creators.”[1].

Now comes Google v. Oracle (a computer software company), which has been hailed for good reason as the “copyright case of the century”. It concerns Oracle’s efforts to punish Google for allegedly infringing computer code to build the Android operating system. An issue in the case is the scope of copyright. Does the structure, sequence, and organisation of application programming interfaces get protected? And separately, does Google have fair use to use whatever is copyrighted? The movie industry is backing Oracle in the case —and the high court’s conclusions will surely have an outsized influence both on the development of technology as well as how future copyright cases get adjudicated. Ginsburg’s passing is probably bad news for Oracle’s chances here. Of all the justices, she was least likely to restrict limits to copyright protection.

The absence of RBG may also impact which future copyright cases the Supreme Court decides to take up. Currently, for example, the Supreme Court is currently being asked to review a 9th Circuit win for Led Zeppelin over “Stairway to Heaven,” alleged to be an infringement of Spirit’s “Taurus.” Skidmore v. Led Zeppelin looked to be a quintessential Ginsburg case. It’s a dispute that not only tackles the scope of copyright but also social inequities in the system, making it within her zone on double grounds. Her departure likely dampens the prospects of high court review. The same is probably true of Steinbeck v. Kaffaga, which concerns movie rights to the works of Nobel Prize-winning author John Steinbeck and a subject (copyright termination) that has been the focus of increasing litigation over the years.

Ginsburg will long be remembered by those who survive her. That includes her daughter Jane, who teaches intellectual property at Columbia Law School and is the director of the school’s Kernochan Center For Law, Media and the Arts.

[1] https://www.hollywoodreporter.com/thr-esq/a-supreme-court-without-rbg-may-impact-hollywoods-grip-on-intellectual-property

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© Naomi Korn Associates, 2020. Some Rights Reserved. The text is licensed for use under a Creative Commons Attribution Share Alike Licence (CC BY SA).

Disclaimer: The material in this blog post is for general information only and is not legal advice. Always consult a qualified lawyer about a specific legal problem.

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