Tuesday, October 13, 2009

Supreme Court Reflections, Part 5 – Ginsburg Nails Publishers’ Inconsistency on Registration

In a revealing exchange, Justice Ginsburg pressed Charles Sims, representing Reed Elsevier and the other petitioner-defendants, on whether the publishers had taken inconsistent positions: “That is, back in the district court before there was a settlement, you urged before the district court that 411(a) was a jurisdictional bar and that that precluded certifying a class that included the non-registered copyright holders. You did make that argument in the district court, and now you are saying -- you are confessing error, that was wrong?”

None too diplomatically, Sims confessed to being guilty only of loose language – “exactly the loose language that this Court was guilty of” in a couple of cited cases.

“Well, you shouldn’t use loose language,” Justice Antonin Scalia countered dryly, “especially when it’s the same loose language, supposedly, that seems to have been used by all the courts …”

If this were Moot Court, Sims would not have gotten the highest grades. Assistant Solicitor General Ginger Anders, arguing for the government, fared even worse, contradicting her own written brief when she took the fence-straddling position that copyright registration prior to suing could not generally be waived, but perhaps could be waived in this particular case.

Amicus Merritt had the best chemistry with the justices in oral argument. Of course, she also, in a sense, was handed a gift in the utter absence of subtlety in the position that the courts simply did not have jurisdiction over unregistereds even in a settlement scenario.

In my mind, Merritt did not persuasively engage Breyer on the need for creativity with new technologies. Merritt’s reading of the legislative history – or, as she called it, the “story” of copyright – as technology-neutral was met quizzically by Breyer, who wondered, “In 1909 Congress thought all this through with the databases and so forth?” Breyer's question drew laughter in the gallery.


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