Tuesday, October 13, 2009

Supreme Court Reflections, Part 3– Breyer and the Case for a Royalty System

Seemingly out of nowhere and rather brilliantly, Justice Stephen Breyer found a way to make a compelling case for a royalty system:

“… I mean, the problem, I take it, realistically is this: let's take a group of people who want to make databases; now they want to use copyrighted material. There is a subset of people who have written it they can't find, so they say here's what we will do. We will take $100 billion, and we will put it in a fund, and like ASCAP, that fund can administer this money for the benefit of anyone who turns up.

“ Now, maybe that's illegal under some law. Maybe the class isn't right. Maybe they can't get proper representation. Maybe it's inadequate, et cetera. But what I … fail to see, is how -- whether you could do that or not do it has anything to do with registration, because we are talking about the people who aren't here, all of whom, if you ever bring suit when he's found, will register the copyright. The only reason they haven't registered, we don't know who they are, that's why. Maybe they have registered, for all we know.”

Perhaps we can’t enact a royalty system because it would yield an unfair result, Breyer mused. On the other hand, “Maybe it won’t, by the way…. It depends on what the terms of the settlement are. We could have a subclass that allows a subset of those people to come into court. No reason you couldn't. So I don't know whether or not it's true that they won't register when they are found.”

When I describe Justice Breyer’s remarks as coming out of nowhere, I am referring to the fact that this passage marked his only vocal participation in the hearing. I am not slighting his logic. Breyer actually tied everything together, organically and impeccably, when he added, “It’s rather surprising that this law [jurisdiction] is the one that will answer that question.” In her rejoinder to this point, at least, Deborah Jones Merritt, the Court-appointed amicus defending the Second Circuit decision, came off as more glib than convincing.


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