Retiring Justice John Paul Stevens's Impact On IP Law

Pickens writes "Corporate Counsel recounts the profound legacy of Supreme Court Justice John Paul Stevens, author of the majority opinion in what some consider the most important copyright ruling of all time — the 1984 Betamax decision (Sony v. Universal City Studios) that established that consumers have a personal 'fair use' right to make copies of copyrighted material for non-commercial use. Justice Stevens's contribution to the ultimate decision in Betamax extended well beyond writing the opinion. The justices' initial debates in the case make it clear that Stevens was the only one of the nine (PDF) who believed that the 'fair use' doctrine gave consumers a right to make personal copies of copyrighted content for home use. It was his negotiating skill that pulled together the five-vote majority allowing home video recorders to be sold and used without interference from copyright holders. An IP litigator is quoted: 'The ruling that making a single copy for yourself of a broadcast movie was fair use ... that was truly huge, and was a point on which the court was deeply divided.' So the next time you're TiVo-ing an episode of your favorite show, remember to give a quick thanks to Justice Stevens; and let's hope that whoever President Obama appoints to replace him will follow in Stevens's footsteps and defend Fair Use, not corporate copyright interests." The review also touches on Stevens's "patent skepticism," which may be on display when the court delivers its eagerly awaited Bilski ruling.

Comments

Right

[kyrio]

"and let's hope that whoever President Obama appoints to replace him will follow in Stevens's footsteps and defend Fair Use, not corporate copyright interests."

That's what's going to happen.

Re:Right

[walt-sjc]

"Golden Boy" Obama has surrounded himself with ex-lawyers from the RIAA / MPAA. Good luck on getting a good appointee.
http://www.osnews.com/story/23002/Obama_Sides_with_RIAA_MPAA_Backs_ACTA

Re:Right

[drinkypoo]

That website is bullshit. Close gitmo in progress? Gitmo is not closed, or probably even closing. He issued an executive order saying it should be closed, but it can be reversed by the next president, just as Bush did after Clinton apparently began the process of closing the facility. Obama has actually done nothing to prevent Gitmo from continuing to operate. And there's no mention of how Obama has already flopped on his promises WRT withdrawal of troops, certainly not in the top 25 where it belongs, given that it was one of the major campaign promises. I can come up with websites which paint him as an asshole, but they'd prove only as much as your "citation". Obama's appointments tell the story that must be attended to. Processes he "starts" can be finished by someone else — in a variety of ways. But some of the appointments will outlast him and affect our lives long after he's no longer a figure in American politics.

Obama is the new boss, same as the old boss, and he's not even the boss. He's beholden to his constituents, the real ones; not the American people, but the American corporations. Until we take the rights of people away from corporations, we will be serving our corporate masters with our every act.

Re:Right

[Anpheus]

The majority of the Senate voted to block funds necessary to transfer detainees. The Republicans then made a huge deal about it and turned into a political nightmare. Obama has pressed forward with preparing facilities in the US and on trials, regardless.

Also, do I need to post sources or are we just ignoring those now? Here's the senate block, here's Obama pressing forward with a memorandum.

Given how quickly almost all of the Senate blocked the transfer of prisoners, I think he's doing quite well. Unfortunately, the President can scoff at Congress' decisions only to a certain degree, and it takes a lot of legal wrangling to get around Congress denying funding for transferring inmates.

Re:Right

[DesScorp]

"The majority of the Senate voted to block funds necessary to transfer detainees. The Republicans then made a huge deal about it and turned into a political nightmare. Obama has pressed forward with preparing facilities in the US and on trials, regardless."

Barack Obama could effectively close Gitmo right now if he wanted to, with the stroke of a pen. He could sign an executive order and move those terrorists anywhere he wanted today. That doesn't require an act of Congress. What he wants is credit for doing it only if Congress gives him cover. In other words, he wants to do it if it's safe politically.

Re:Right

[grcumb]

Barack Obama could effectively close Gitmo right now if he wanted to, with the stroke of a pen. He could sign an executive order and move those terrorists anywhere he wanted today. That doesn't require an act of Congress. What he wants is credit for doing it only if Congress gives him cover. In other words, he wants to do it if it's safe politically.

And how, pray tell, would he get them off the island of Cuba if Congress denies him the funds?

Checks and balances can be a bitch sometimes. In this case, the Senate refused to write the check.

Re:Right

[DesScorp]

Checks and balances can be a bitch sometimes. In this case, the Senate refused to write the check.

I didn't say it wouldn't cost money somewhere else. But if he wanted to, he could pick up a phone and tell the Joint Chiefs "Look, I want them all on a C-17 headed somewhere else in 6 hours. Make it happen". And it would.

Are you seriously... seriously going to argue that this hasn't happened because of cost?

Good job he's there for Bilski

[ciaran_o_riordan]

It's probably a very good thing that Bilski is being written while Stevens is still there. He was involved in all the previous subject matter cases, and the Supreme Court never said software was patentable in those. They also said a bunch of useful things like that math isn't patentable, and that putting instructions such as software onto a computer was a "mere clerical" act.

• Justice Stevens
• US Supreme Court
• Diamond v. Diehr (1981, USA)

One man's game

[gzipped_tar]

Last time I checked, the USA is supposed to be some kind of a democracy. Therefore, instead of hoping for a Wise Person getting appointed, why not use the democracy-ishness and get your stuff fixed?

Re:One man's game

[betterunixthanunix]

In the USA, the President appoints judges, and the senate votes for or against those nominations. Sadly, the Obama administration has ties to Hollywood, and will probably appoint another anti-consumer judge...and the senate, under Democrat control, is not likely to vote against such a judge.

You could say the democracy is broken.

Re:One man's game

[WrongSizeGlass]

Last time I checked, the USA is supposed to be some kind of a democracy. Therefore, instead of hoping for a Wise Person getting appointed, why not use the democracy-ishness and get your stuff fixed?

We kinda-sorta already do. One of many metrics used to measure a potential presidential candidate is the type of Supreme Court Justice(s) he/she might nominate for appointment. Their judicial appointments are reviewed if they were a governor, and their votes on federal and/or Supreme Court appointments are reviewed if they were a senator. Some Independent voters, as well as "undecideds", consider a candidate's positions on abortion rights, gun rights, civil rights, etc, and the type of Justice they will nominate, when choosing who to vote for.

Re:One man's game

[mindstormpt]

You, as many slashdot users, seem to be a bit confused on the meaning of the word democracy. The concept you seem to be referring to is that of direct democracy. Most democracies today are representative democracies, in which the "rule of the people" is carried out by their elected representatives. It is not at odds with the concept of republic: most western countries are republics (of varied kinds), and they're all (all that I can think of) democratic.

Re:One man's game

[shaitand]

I always did love the democratic republic or representative democracy angle. It's a great way of trying to dupe people into thinking the nation is ruled by people.

Of course the reality is that people have little to no power in the current United States therefore it isn't a democracy at all, direct or otherwise.

Re:One man's game

[Lakitu]

It really did work! I was under the impression that every country was ruled by people of some kind, even if few in number.

What exactly is running all these countries? Aliens? Lions? Something that passes the turing test?

Re:One man's game

[shaitand]

Not all of us group politicians and their overlords in with humans.

Re:One man's game

[Miseph]

Of course that Republican president was Gerald Ford, a hold-over moderate from the Eisenhower era, not a modern Republican neo-con.

The sad part is that Stevens' views haven't actually changed all that much, but what was once considered to be middle-right is now considered far-left by the authoritarian corporatists who define our current political spectrum.

If Only There Was A Way ...

[WrongSizeGlass]

... to make a "fair use" copy of Justice Stevens (non-betamax, of course) ;-)

I'd love to hear his take on DRM, ACTA and this crap.

Re:The only IP law that I care about is...

[hey!]

Oh, I didn't miss the joke. I'm still a little fuzzy on the humor.

Re:Corporate interests

[SplicerNYC]

Sadly, I don't doubt this at all. The entertainment industry has invested heavily in the Democratic Party hoping for support for their draconian wishlist. We're moving in the wrong direction here especially when it comes to the concept of fair-use and copyrights. The notion of the public domain is becoming extinct in practice as perpetual copyrights are put into place for corporations that hoard them.

Obama's appointment support Fair Use??

[gink1]

I'm sure this will be said far better by others, but an unbiased, non-Corporatist appointment by Obama is a pipe dream!

Obama is a ardent Corporatist which you can see by his "Health Care" Bill, the bailouts and his undying advocacy for all RIAA, MPAA and Big Media causes (ACTA for one).

This Court is already a Corporatist court (Corporate Money = Free Speech ruling) and the next appointment will merely cement that.

Property vs Rights

[Doc Ruby]

The people need the 21st Century Supreme Court to properly decide the correct balance between property rights and all kinds of other rights, like speech and other expression. And to decide correctly what is actual property and what is just a temporary government monopoly. To recognize that progress in science and the useful arts is promoted when our rights other than a synthetic "copyright" govern the market.

Or we can keep the 20th Century property privilege that the surviving old members of the Court find every excuse to protect.

We will see just how much change Obama truly brings. Or whether he's just a corporatist, who protects the only "right" a corporate person could possibly have: maximizing property and the power that comes with it.

Re:Corporate interests

[DJRumpy]

Sotomayor is definitely pro IP, but she is NOT pro corporation. The two are not mutually inclusive.

http://www.webpronews.com/topnews/2009/06/05/whats-sotomayors-stance-on-intellectual-property

She is not pro-corporation as stated above. One of her first comments while being questioned made that very clear. She believes corporations should NOT be granted any rights of a 'person'.

http://blogs.wsj.com/law/2009/09/17/is-sotomayors-corporations-arent-people-comment-a-harbinger/tab/article/

It is, I think, self self-evident....

[mark-t]

... that making a personal use copy of a work should be considered fair use.

Consider that even when one might happen to simply mentally remember their experience of a movie, they are, in essence, creating a temporal copy of that experience for themselves, and quite arguably even a derivative work of it, yet under any notion that unauthorized personal use copies of copyrighted works would not be fair use, simply by _THINKING_, one can be breaking the law.

Regardless of the enforceability aspects that come into play with this sort of thing, I find that anything which might make what a person could happen to think against the law, even if only by technicality, or else a violation of anybody else's rights to be nothing short of an abomination.

As an aside, I abhor patents on computer algorithms for the same reason.

Re:The only IP law that I care about is...

[Cyberax]

Black helicopters are dispatched. Please, don't leave the area, citizen.

TCP/IP now stands for Trusted Computer Platform / Intellectual Property.

MPAA News Channel

[tepples]

Obama will replace him with someone anti "fair use". He was put on the throne by the media

How can one get elected to the office of President without support of the major TV news networks, all of which are in the MPAA?

False marking

[tepples]

Aenesidemus' patent on patent skepticism has been expired even longer than Seth Boyden's patent on patent leather. Continuing to call it patented could get you in trouble for false marking.

Greenwald on Justice Stevens' replacement

[_critic]

Now more than ever, it's vital we pay attention to the candidates the Obama Administration puts forward.

In light of VP Joe 'Hollywood' Biden's unbridled support by and for media industries and the Administration's inability to take a principled stand against the financial, insurance or pharmaceutical lobbyists, as well as its apparent pursuit of unbridled Executive power, it's dubious that the candidates we see coming from this White House will be equal to the chair being vacated by Justice Stevens.

If you think Kagen is an acceptable replacement, you must read Glenn Greenwald's commentary on the nominations . . . We absolutely MUST have a nominee that will fill Stevens seat with the same dedication to the rule-of-law and sensible jurisprudence he provided.

This is just too important for us to get it wrong. Unfortunately, it will take an unprecedented show of public intolerance for inadequate nominees.

Courts decide if things are Constitutional

[aronschatz]

I see posts that are advocating legislation from the bench. This is not the purpose of the court. The court is only there to decide the constitutionality of an issue. They are not there to do anything more.

If you don't like the law, you need to petition congress... UNLESS the law is unconstitutional, then you can take it to the courts.

Re:Courts decide if things are Constitutional

[hibiki_r]

But that's the point: 'limited time to promote the science and the arts'. Our case is that copyrights aren't limited, and that their length, and the retroactiveness of the extensions, doesn't really fit what the constitution states, as a very long copyright term hinders creativity more than it promotes it.

Same thing for patents: What one can do with the same patent term 100 years ago is so much less than you can do now, that in fact keeping the patent length the same is effectively an extension.

Ah, if Lessig had actually used a decent defense.

Re:Courts decide if things are Constitutional

[jedidiah]

I dunno...

I think it's the courts job to declare that "limited times" does not infact mean continual retroactive increase in terms.

It's the courts explicit job to interpret new laws in light of "THE LAW". They aren't just spectators. They are equal partners in governance.

People like to belittle this fact and also tend to neglect that "legislating from the bench" is what judges in the common law system do. The Judiciary serves an important role in our government with our system their power shouldn't be so casually undermined. They were given that level of power for a good reason by the fellows that set the whole thing up to begin with. They are supposed to be there to keep the President and the Senators from running amok. It's their job description, not an abuse of it.

Personal copies of copyrighted content?

[butlerm]

The justices' initial debates in the case make it clear that Stevens was the only one of the nine who believed that the 'fair use' doctrine gave consumers a right to make personal copies of copyrighted content for home use

That is a bit of an overstatement, don't you think? Recording an over the air broadcast for later viewing is not quite the same thing as exchanging bootleg copies of Photoshop, etc. There doesn't appear to be any indication that Justice Stevens endorsed the latter.

Re:Corporate interests

[DJRumpy]

Sotomayor is a judge, not a politician. It is her purpose to interpret the law.

According to your logic, even though she outright stated that in her opinion that corporations should not have the same rights as people, you still claim she is pro-corporation?

[From the link above]
"But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights people have.

Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with[imbuing] a creature of state law with human characteristics.”

You make a common mistake, assuming that because one is "Pro Intellectual Property", that a person must also be "Pro-Corporatist", which is not the case.

Not all IP is owned by corporations. Simple boolean logic should give you the answer to that one. Just because some IP is owned by corporations, and she is Pro IP, that doesn't make Pro-IP == Pro-Corp.

Eldred v Ashcroft

[slashqwerty]

Stevens was also one of only two judges in Eldred v Ashcroft to reject the Copyright Term Extension Act as unconstitutional.

generation shift

[ciaran_o_riordan]

There's something funny about lamenting the resignation of an 89 year old judge because he's the only one that gets modern technology... :-)