Last week, Judge (soon to be Justice) Ketanji Brown Jackson was confirmed as the newest member of the Supreme Court. Many Americans have have found much to celebrate in Judge Jackson’s confirmation: she is the first Black woman to serve on our nation’s highest court, and her diverse experience as a judge and attorney make her highly qualified for the position in the eyes of many. But how will the Court be affected by Judge Jackson’s views on copyright? Longtime readers may recall that Authors Alliance published a rundown of Justice Barrett’s copyright jurisprudence after her confirmation to the Court in late 2020. In today’s post, we will survey Judge Jackson’s record on copyright to give a preview of how her views might affect the Court’s copyright jurisprudence going forward.
It is worth mentioning that Justice Breyer, whom Judge Jackson will be replacing on the Court, has long been known as the Justice most focused on intellectual property and copyright, and the most liberal Justice on these subjects. Justice Breyer has authored powerful dissents, such as in Eldred v. Ashcroft, where argued that a lengthy extension of copyright duration did not serve the public interest, and majority opinions such as the more recent Google v. Oracle, in which the Court applied a broad interpretation of fair use to software. All of this indicates that Justice Breyer will leave big shoes to fill, making an exploration of Judge Jackson’s copyright jurisprudence more important than ever for authors who care about seeing their works reach broad audiences.
While Judge Jackson once clerked for Justice Breyer, her judicial record on copyright law is fairly thin. This is perhaps not surprising considering that a bulk of copyright cases are filed in either the Second Circuit (which includes New York) or the Ninth Circuit (which includes California), whereas Justice Jackson has spent the last decade as a judge in the D.C. Circuit and later the U.S. Court of Appeals for the D.C. Circuit.
Copyright Questions in Confirmation Hearing
Most recently, Judge Jackson was faced with questions about her record and views on copyright during her confirmation hearings. Senator Thom Tillis asked Judge Jackson a number of written questions related to copyright law (among other things), including her opinion on the proper balancing of the four fair use factors. Judge Jackson answered that, in her view, the fourth fair use factor—the effect of the use upon the potential market for the copyrighted work—was most important in fair use analysis, citing Supreme Court precedent in Harper & Row v. Nation Enterprises. It is notable that Judge Jackson did not discuss factor 1—the purpose and character of the use, including whether it is considered “transformative”—as this factor is conventionally held up alongside factor four as the two most important parts of the fair use inquiry.
The transformativeness doctrine has become incredibly important in recent years, protecting uses such as full-text searchable scans of works in Authors Guild v. Google and reuse of software code in Google v. Oracle. Judge Jackson’s lack of emphasis on transformativeness in her comments related to fair use could indicate that she might give less weight to transformativeness than the market effects of a particular use. In the next term, the Supreme Court will hear Warhol Foundation v. Goldsmith, a fair use case that turned on transformativeness in the lower courts, and Judge Jackson’s deemphasis on transformativeness could foreshadow an inclination on her part to decide the case on other grounds.
Speaking to the copyright decisions she had made in her capacity as a federal judge, Judge Jackson pointed to the two cases discussed below in her written responses to Senator Tillis’s questions.
In 2016, the Alliance of Artists and Recording Companies, a nonprofit organization dedicated to collecting royalties under a provision of copyright law known as the Audio Home Recording Act (“AHRA”), filed a lawsuit against General Motors for failing to comply with the statute by installing recording devices in car dashboards without paying royalties for any recordings made. In the case, Judge Jackson considered whether the recording devices installed by GM constituted “digital audio recording devices” under the AHRA. The case was essentially one of statutory interpretation, a method by which judges examine the language and context of a statute to determine whether and how it applies to the case at hand.
One challenge present in this case was the fact that the AHRA was passed in 1992, prior to the advent of advanced in-vehicle audio recording devices. Judge Jackson was thus tasked with determining whether the statute should cover a technology that did not exist when the statute was enacted. Over the course of two years and three separate rulings, Judge Jackson ultimately determined that GM’s dashboard recording devices did not qualify as “digital audio recording devices” under the AHRA. In short, this was because the AHRA was directed at music recording, whereas GM’s devices copied and stored a plethora of data, including computer programs and voice recordings in addition to music. Because the statute did not apply to GM’s activities, Judge Jackson ultimately dismissed the case. In the case, Judge Jackson demonstrated an ability to apply a technical and perhaps arcane aspect of copyright law, indicating a willingness to dive into these important issues.
In 2020, Judge Jackson issued a decision in Buchanan v. Sony, which concerned allegations of copyright infringement in music. In the case, Moreh Buchanan alleged that Sony had improperly taken the “plot, theme, story line, characters, cast, scenes, etc.” for the Fast and Furious film franchise from four songs he claimed to have submitted to Sony between 1992 and 1997. Judge Jackson found for Sony in the case for a number of reasons: Buchanan had failed to register his copyrights in the songs, which is a condition for being able to sue to enforce those rights in court; Buchanan had failed to prove that Sony had access to his recordings; and Buchanan had failed to allege that the his songs and the films were “substantially similar,” which is also needed to support an infringement claim. In her decision, Judge Jackson showed her understanding of the requirements of an infringement claim and the importance of these elements, whatever the facts of the case. The litigant had made allegations that read as fairly bizarre, such as suggesting that his lyric, “I’m on the freeway zooming fast” was the basis for the Fast and Furious films. Nonetheless, Judge Jackson engaged with the claim and carefully laid out the legal justifications for dismissing it.
While Judge Jackson’s record on copyright may be thin, the copyright opinions she did author show her understanding and willingness to engage with copyright issues. Authors Alliance will keep our readers appraised of any copyright developments on the Supreme Court as Judge Jackson joins the bench next term.