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.

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1 Response

  1. Joe says:

    “I just think it shows that “taking certain considerations into account” says little about how cases should be resolved.”

    Right. Did he claim otherwise? His basic point is that to adequately decide a range of issues a judge needs to be informed about international matters in a range of ways and engagement is also useful.

    Breyer argued in Eldred (losing side argued by Prof. Lessig, whose presidential candidacy is likely to be about as productive) that international concerns — which he weighed thus fulfilling his argument — did not warrant upholding the law. The “in part” here helps his case – the law to him was too broad.

    His Golan dissent is of similar character, both concerned with the limits of the Copyright Clause. International concerns doesn’t mean he will ignore the limits of the Constitution or favor a side that certain international parties might support. Such also covers the third case.