Supreme Court Reflections, Part 4 – The Counterintuitive Roles of Stevens and Breyer

For me, what made the Stevens and Breyer bull’s eyes even more delightful is that they came from the very two justices who dissented from the Supreme Court’s 7-2 majority in favor of the authors in Tasini v. Times.

I have argued repeatedly that Reed Elsevier v. Muchnick is a kind of Tasini II – or, at the very least, the real world’s first nuts-and-bolts application of Tasini principles.

So maybe the intellectual explanation for Stevens’ and Breyer’s 2001 dissents is not so much that they were less concerned about writers’ rights as that they were more focused on the long-term vision of public access to copyrighted works. In my reading, Ruth Bader Ginsburg’s majority opinion in Tasini clearly pointed the way toward a royalty system as the access solution. Perhaps Breyer has evolved into the Court’s most articulate champion of that solution.