Intellectual Property

Remembering Justice John Paul Stevens: Copyright Edition

Thank you for Sony Corp’s majority opinion, which paved the way for more fair use decisions.

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Justice John Paul Stevens will be remembered for many things. As the justice appointed by Republican President Ford, thought to be a centrist, who ultimately became a bastion of the liberal wing of the court. As the justice who said that he didn’t move left, the court moved right. As the third-longest-serving Supreme Court Justice in the history of the Court. For expressing regret over his vote supporting the reinstatement of the death penalty in the United States in 1976. For his fiery, 90-page dissent in Citizens United, after which he decided to resign from the bench. For calling for a repeal of the Second Amendment. With his long tenure on the Court, any number of opinions or dissents might spring to mind, but here are two notable ones on copyright.

Justice John Paul Stevens gave us one of the most significant copyright opinions of the last 35 years. In the 1984 case Sony Corp of America v. Universal City Studios, Justice Stevens wrote for a 5-4 court allowing the use of VCRs for “time shifting”—recording a program to view later. Sony Corp, also known as the “Betamax” case, involved a challenge to whether manufacturers of home video recording devices could be liable for copyright infringement.

As Justice Stevens noted in response to the contributory infringement claim, “…in both [patent and copyright law] the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The stape article of commerce doctrine must strike a balance between a copyright holder’s legitimate demand for effective—not merely symbolic—protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses” (emphasis added). The majority found that Betamax’s use for private, noncommercial time-shifting in the home satisfied the “substantial noninfringing use” standard, upholding time-shifting as a fair use.

Interestingly, it appears that SCOTUS originally leaned in the opposite direction; had Justice Stevens lost his battle for five votes for his position, we would not have VCRs, DVD players, or DVR. While Justice Stevens was often known for his independent streak and tendency to write his own dissenting or concurring opinions, rather than joining others, in Sony Corp, he managed to sway his colleagues and pull together a single majority opinion. A loss in Sony Corp would have dramatically altered the fair use landscape as we know it today, potentially impacting other technologies, particularly in the digital era.

While Justice Stevens’s contribution to fair use jurisprudence in Sony Corp is perhaps his most notable in the intellectual property space, he clearly had strong opinions on other areas of copyright law. Sadly, Justice Stevens was on the losing end of Eldred v. Ashcroft, the case where the majority opined that the Copyright Term Extension Act was a valid exercise of Congressional authority under the Constitution. Eldred involved a challenge to CTEA, which extended copyright term from a period of life plus 50 years to life plus 70 years (I’ve previously complained about our current copyright term here). SCOTUS considered whether Congress had the power to set copyright term and extend term retroactively, and by a 7-2 margin upheld CTEA as a “rational exercise of legislative authority” because extension of copyright term did not exceed the prescription that the statutory monopoly be confined to “limited times.”

The main part of Justice Stevens’s dissent begins, as all good copyright opinions should, with the Constitution’s IP clause: “Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Wrings and Discoveries.” Justice Stevens’s dissent then methodically goes through each of the arguments in favor of copyright term extension and emphasizes that retroactive extension — which was the real issue in the question presented to the court — does not incentivize new creations.

In conclusion, Justice Stevens’s dissent notes:

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The express grant of perpetual copyright would unquestionably violate the textual requirement that the authors’ exclusive rights be only “for limited Times.” Whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights. Accordingly, there is no need to determine whether the deference that is normally given to congressional policy judgments may save from judicial review its decision respecting the appropriate length of the term. It is important to note, however, that a categorical rule prohibiting retroactive extensions would effectively preclude perpetual copyrights. More importantly, as the House of Lords recognized when it refused to amend the Statute of Anne in 1735, unless the Clause is construed to embody such a categorical rule, Congress may extend existing monopoly privileges ad infinitum under the majority’s analysis.

By failing to protect the public interest in free access to the products of inventive and artistic genius—indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause—the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

Rest in peace, Justice Stevens. And thank you for Sony Corp’s majority opinion, which paved the way for more fair use decisions, and for your eloquent dissent in Eldred.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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