Thursday, March 04, 2010

Post-Supreme Court Notes

I’ve taken my little victory lap for Reed Elsevier v. Muchnick – one shared, in terms of the Supreme Court decision itself, with the settlement parties.

Now it’s back to the task of making lemonade out of the lemons that were plucked off the tree by the periodical and electronic database industries, in cahoots with three authors’ organizations. Will they negotiate with the objectors or do we go back to slugging out the merits of the settlement before the Second Circuit?

The landscape has changed dramatically since the three-judge panel there misguidedly overturned the settlement on jurisdictional grounds. There’s Google Books, of course. And there’s whatever effect the nuances of the Supreme Court’s decision this week will have on the upcoming merits phase.

One thing I so far have neglected to report on this blog is that the Court was unanimous: 8-0. (Justice Sotomayor, the 1997 district court judge in Tasini v. New York Times, whose decision the Supreme Court reversed in 2001, had recused herself.) Reed Elsevier lawyer Charles Sims called the unanimity “sweet.”

I call it very, very interesting. Three justices -- Ginsburg, Breyer, and Stevens -- concurred with the main opinion, written by Justice Thomas, but produced a separate one that emphasized different aspects of the law undergirding the decision. It’s way too early in the morning for me to try to explain that in any more depth.

However, I am intrigued by the implications of the Ginsburg-Breyer-Stevens troika. Ginsburg had written the Tasini opinion, which was a 7-2 vote – and Breyer and Stevens were those two dissenters.

Back in October, after attending the oral argument in Reed Elsevier v. Muchnick, I wrote that the perceptive questions from Breyer and Stevens were leading me to the conclusion that they had dissented in Tasini not out of a disrespect for independent creators’ rights, but because they had a different and more pragmatic vision of how those rights should be applied. At our hearing, Stevens – ornery but in a cool way – showed impatience for the hairsplitting between calling the copyright registration requirement either “mandatory” or “jurisdictional.” And Breyer placed so much importance on the value of the fairness of the settlement (which was only indirectly related to the narrow and technical question before the Court) that he turned one of his questions into a long riff about a hypothetical royalty system. Music to my ears, obviously.

That Stevens and Breyer wound up joining Ginsburg, the architect of Tasini, in a nuanced affirmation of a unanimous opinion in an offshoot case is more than sweet. It may help pave the road ahead.


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