While the u.s. supreme court has been at the heart of the presidential election campaign, we take a look back at the changes to be expected in the ip-it cases following the replacement of justice ruth bader ginsburg by justice amy coney barrett.
Following the death of Justice Ginsburg, the U.S. President has appointed Amy Coney Barrett, a federal judge on the U.S. Court of Appeals for the Seventh Circuit since 2017, as her successor. The appointment sparked a lively political debate as it came just weeks before the presidential election and was intended to reinforce the conservative orientation of the Supreme Court (six seats versus three) for several decades (Amy Coney Barrett is 48 years old and Supreme Court justices are appointed for life). On October 26, 2020, Justice Barrett received confirmation in the Senate and was sworn in as a member of the highest U.S. federal court on the same day. Criticized for her conservative positions on societal issues whereas Justice Ginsburg was regarded as a progressive and feminist icon, does this cleavage also make transparent the IP-IT cases they respectively ruled on?
Justice Ginsburg's approach
Observers noted that Justice Ginsburg, firmly believing that innovation is the driving force of the market economy, was particularly attached to the interests of authors and right holders, as she had shown in several cases. Notably, Justuce Ginsburg ruled in favour of journalists hired by print publishers whose articles were then reproduced, without their prior permission, in third-party electronic databases and in another format (New York Times Co. v.Tasini
). In another case, while it was argued that an extension granted by Congress with respect to the term of copyright protection from 50 to 70 years after the author's death (1998 Copyright Term Extension Act
) restricted the freedom of expression guaranteed by the First Amendment to the Constitution, Justice Ginsburg took a position in favor of extending the term of protection and thus in a direction more favorable to the interests of authors (Eldred v. Ashcroft
). The Supreme Court has lost an outspoken protector of the interests of IP rights holders' interests. Does her replacement have the same approach?
Justice Barrett's approach
In his hearing before the Senate on October 14, 2020, Senator Thom Tillis, Chairman of the Subcommittee on Intellectual Property, asked Justice Barrett whether it was more appropriate for the Supreme Court or Congress to deal with the adaptation of copyright to the digital environment, when the Digital Millennium Copyright Act (DMCA) could be described as a "relic of the Myspace era in a TikTok world
". Justice Barrett replied that, in her view, these were political issues that should be dealt with by the legislature and not the courts, taking a purely textualist approach. Although Justice Barrett has decided only a few IP-IT cases in the three years that she has served on the U.S. Court of Appeals for the Seventh Circuit, her decisions seem to indicate that she is particularly committed to the letter of the texts adopted by Congress (J.S.T. Corp. v. FoxconnInterconnectTechnologyLtd.
; Ariel Investments, LLC v. Ariel CapitalAdvisorsLLC
and PMT Mach. Sales Inc. v. Yama Seiki U.S. Inc.
). Accordingly, in a case concerning the assessment of damages depending on whether a compilation constitutes a single work or a collection of different works, Justice Barrett recalled how crucial weight should be given to the text of section 504(c)(1) of the Copyright Act, which provides that "all parts of a compilation or any derivative work constitute a single work
", and thus to the artists' decision to group the works together or to publish them separately (Sullivan v. Flora Inc.
). The fact that Justice Barrett is a strong textualist may promote a form of predictability for rights holders. In this sense, Justice Barrett agrees with the approach taken by several other Supreme Court justices in the recent IP-IT cases in which attempts by the lower courts and the USPTO (United States Patent and Trademark Office
) to develop rules that deviate from existing law were all rejected (Halo Electronics, Inc. v. Pulse Electronics, Inc
; Samsung Electronics Co. v. Apple, Inc
; SAS Institute vIancu
; Romag Fasteners Inc. v. Fossil Inc.
; Lucky BrandDungarees v. MarcelFashionsGroup Inc.
and USPTO v. Booking.com B.V.
). However, this approach makes it more unlikely that the Supreme Court will evolve towards an interpretation of the texts in force in a way that allows new technologies or new forms of use to emerge.
Issues and consequences
Justice Ginsburg's disappearance occurred just days before the October 7, 2020 hearing before the Supreme Court in Google LLC v. Oracle America Inc.
a major copyright and software case. In this case, the Supreme Court will have to decide in the spring of 2021 whether copyright protection covers a software interface (API) and whether the unauthorized use of an API by third parties in the creation of new software - a practice that is widely developed - can benefit from the "fair use"
exception to copyright. The Supreme Court's answer to these questions will have a decisive impact on the IT industry because a decision in favor of Oracle would strengthen the copyright protection of software but would, according to Google, hinder the development of new applications and thus innovation. It will never be known whether Justice Ginsburg could have convinced her colleagues to rule in favor of enhanced copyright protection. But it is certain that the Court's position will be closely scrutinized by the industry both in the United States and elsewhere in the world. [interne id="67065"][interne id="66993"]