Justice Breyer and International Copyright
Justice Breyer has a new book out that discusses the importance of international and comparative law to the Court’s work. I find this ironic given Justice Breyer’s position in several of the Court’s major copyright decisions. In Eldred v. Ashcroft (2003), Golan v. Holder (2012), and Kirtsaeng v. Wiley (2013), Breyer’s analysis consistently discounted international or comparative factors in either assessing the constitutionality of a copyright statute or interpreting such a statute. To wit:
In Eldred, Justice Breyer dissented and argued that Congress’s extension of the copyright term for existing works was invalid. He took this view in spite of the fact that Congress took this step (in part) to match a decision by the European Union on the appropriate length of copyrights.
In Golan, Justice Breyer dissented and argued that Congress could not constitutionally remove works from the public domain. He took that position in spite of the fact that Congress took this step to bring the United States into compliance with the Berne Convention.
Finally, in Kirtseang Justice Breyer authoring the Court’s opinion construing the Copyright Act as providing that the first sale doctrine applied to copies of a copyrighted work made abroad. He did this in spite of the assertion (made in dissent by Justice Ginsburg) that the Court’s interpretation contradicted the United States’s position in global copyright negotiations on “international exhaustion.”
Now all of these positions might be perfectly justified. (Indeed, I think that Breyer was right in Golan, though wrong in Eldred.) I just think it shows that “taking certain considerations into account” says little about how cases should be resolved.