This article begins by examining Breyer’s lasting impact on copyright law through his majority opinions in Kirtsaeng v. Wiley,2 ABC v. Aero,3 Google v. Oracle,4 and Unicolors v. H&M,5 as well as his dissents in Eldred v. Ashcroft,6 Golan v. Holder,7 and Petrella v. MGM.8 Then, we turn to Justice Jackson’s record on copyright law by reviewing a copyright decision handed down while she was Justice Breyer’s clerk (Raquel v. Educ. Mgmt. Corp.9) and two copyright opinions she authored during her time on the D.C. Circuit (Alliance of Artists & Recording Cos., Inc. v. Gen. Motors Co.10 and Buchanan v. Sony Mus. Ent.11).
These cases paint a picture of Justice Breyer as an advocate for public benefits over owner protection and someone with a sharp focus on the application of copyright law to emerging technology. Meanwhile, Justice Jackson’s limited record on copyright law suggests she shares the ability to engage in careful analysis of new technology, but her copyright canvas is largely blank, waiting to be filled with brushstrokes not yet discernable.
Justice Stephen Breyer’s “Uneasy Case for Copyright”
Justice Breyer made his first few brushstrokes on the canvas of copyright law when he was a young professor seeking tenure at Harvard Law School.12 In his often-cited article “The Uneasy Case for Copyright,” Justice Breyer presented an economic argument against expanding protections, which he believed would fail to spur the creation of new works.13 The piece foreshadowed many issues he would later tackle while on the Supreme Court, including copyright protections for textbooks and computer programs.14 It also provided a glimpse into his skepticism regarding overly stringent intellectual property protections, a defining aspect of his copyright jurisprudence.15 As discussed below, during his time on the Supreme Court, Justice Breyer would side with copyright owners in only two of the nine cases that came before him.16
Justice Breyer’s first majority opinion on copyright law came in 2013 in Kirtsaeng v. Wiley, a case involving the resale of textbooks and the application of the first sale doctrine.17 The plaintiff in that case was John Wiley & Sons, Inc. (Wiley), an international publisher of academic books.18 Wiley manufactured several versions of its textbooks, one for sale only in the United States and other English-language editions that were designated only for markets abroad.19 Petitioner Supap Kirtsaeng (Kirtsaeng) was a young Thai student who came to the United States for college and soon realized that the nearly identical foreign versions of Wiley’s textbooks were far cheaper at home.20 His friends and family in Thailand purchased the less expensive textbooks and shipped them to Kirtsaeng in the United States, where he then turned around and sold them to other students, making a profit on resale.21 Wiley sued him for copyright infringement, and Kirtsaeng argued that the “first sale” doctrine allowed him to resell the books without the company’s permission.22
The central question for the Court, then, was whether the first sale doctrine protects a seller of a copyrighted work that was lawfully manufactured abroad who then resells the work in the United States.23 Under section 109(a) of the Copyright Act, the owner of a copy “lawfully made under this title” is allowed to sell that copy, i.e., make a distribution of that work, without the need for permission from the copyright owner.24 A split panel of the Second Circuit held that “lawfully made under this title” was a geographic limitation, meaning that the first sale doctrine applied only to American copyrighted works manufactured in the states, not abroad.25 Justice Breyer, however, turned to basic definitions of terms, statutory context, common law history, and policy arguments to hold that the first sale doctrine applies to works produced outside the United States with the authorization of the copyright holder.26
In his opinion, Breyer expressed particular concern that a geographical limitation on the first sale doctrine would “fail to further basic constitutional copyright objectives.”27 Justice Breyer worried about the impact on millions of works initially published abroad and now housed in libraries, on display in museums, or for sale at used bookstores.28 Requiring the holders of those works to obtain permission from copyright owners would disrupt years of settled expectations and potentially limit dissemination of cultural treasures and technological advances.29 This concern for limiting access to information would reappear in later opinions, particularly in Google v. Oracle discussed below.
One year later, ABC v. Aereo gave Breyer a chance to showcase one of his passions: analyzing the intersection of copyright law and technological innovation. Aereo also represented a rare instance in which he sided with copyright owners. Respondent Aereo was a service that allowed its subscribers to stream over-the-air television broadcasts for a monthly fee.30 When a subscriber clicked on a program, an Aereo server would select an antenna to receive the broadcast and then save that data in a user-specific folder for the subscriber to view on demand.31 Because most of the programing Aereo streamed was copyrighted works, a group of producers, marketers, and broadcasters sued for copyright infringement.32 Specifically, the plaintiffs argued that Aereo was infringing their right to publicly perform their works under the Transmit Clause.33 The Second Circuit held that Aereo did not infringe on that right because it was not transmitting programs to the public; rather, it sent personal copies to each individual subscriber.34
In reversing the Second Circuit, Justice Breyer honed in on two central questions: Was Aereo performing the works, and, if so, was Aereo doing so publicly?35 He answered the first question in the affirmative, finding that Aereo’s service bore an “overwhelming likeness” to cable companies, which were brought within the scope of the Copyright Act through a series of amendments in 1976.36 The changes included the enactment of the Transmit Clause, which specified that an entity performs when it transmits a performance.37
Justice Breyer also answered “yes” to the second question, holding that Aereo was “publicly” performing the works.38 He brushed aside arguments from Aereo that it was creating new performances through each transmission and merely transmitting programs privately to one subscriber at a time.39 Instead, he reasoned that Aereo “transmits a performance whenever its subscribers watch a program” and this was a transmission “to the public” because the “technological differences” between Aereo and a cable system did not matter and “one can transmit a message to one’s friends, irrespective of whether one sends separate identical e-mails to each friend or a single e-mail to all at once.” Both would be a dissemination to the “public.” 40
Finally, Justice Breyer rejected Aereo’s contention that applying the Transmit Clause to Aereo would open the floodgates of liability for new technologies, ones that Congress did not have in mind with its 1976 amendments.41
Breyer’s Mona Lisa: Google v. Oracle
Another case concerning copyright law and technological advancement would prove to be Justice Breyer’s intellectual property masterpiece, depending on the eye of the beholder.42 Google v. Oracle featured two tech titans in a fight over copyright’s applicability to computer programs. Oracle’s predecessor, Sun Microsystems, created the Java programming language now known and used by millions of software developers around the world.43 When Google acquired Android, the smartphone company, it hoped to license Java’s platform for its phones.44 However, negotiations between the companies fell apart, so Google engineers built their own platform.45 In the process, the engineers copied about 11,500 lines of code from Java’s program.46
After Oracle sued for infringement, a jury found limited copyright infringement but deadlocked on whether Google could demonstrate a successful fair use defense. The trial judge then decided that copyright protections did not apply to the code at issue but, rather, the code was a “system or method of operation” not subject to copyright protection. On appeal, the Federal Circuit held that the Java program was copyrightable and that Google’s use was not a fair use.47
Writing for the majority of the Court, Justice Breyer dove into the intricacies of fair use, holding that Google’s use of Java fell within the doctrine’s contours.48 Interestingly, Justice Breyer first declined to reach one of Google’s core questions, whether Java’s interface was even copyrightable in the first place.49 Instead, he wrote that “[g]iven the rapidly changing technological, economic, and business-related circumstances,” the Court would “assume, but purely for argument’s sake,” that the interface was copyrightable.50
He then marched through the fair use factors, beginning with the nature of the copyrighted work.51 Because Google copied only one aspect of the Java language, and because the language itself was merely a tool for programmers, Justice Breyer wrote that the code was far from the “core” of copyright.52 Next, Justice Breyer found that the purpose and character of the use were transformative because Google created a new platform that would expand the use of Android-based smartphones.53 He also pointed out that the jury heard that reuse of interfaces is common in the industry, and Sun itself “used pre-existing interfaces in creating Java” and thus this was important to the further development of computer programs, making the use transformative.54
In terms of the amount and substantiality of the portion used, Justice Breyer wrote that Google copied just 0.4 percent of the overall Java code.55 It copied the lines of code “not because of the creativity, their beauty, or even (in a sense) because of their purpose,” but because programmers knew the language, “and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them.”56
Finally, Breyer turned to the market effects, finding that Google’s smartphone technology was “distinct (and more advanced)” than Java software. He pointed out the evidence presented at trial which showed that Sun Microsystems likely could not have broken into the mobile phone market and, thus, as experts at trial had testified, Google’s Android was not a market substitute for Java’s software.57 More broadly, Justice Breyer wrote that enforcement of Oracle’s copyright would serve as “a lock limiting the future creativity of new programs,” which would interfere with the basic objectives of copyright.58 Thus, the “uncertain nature of [Oracle’s] ability to compete in Android’s market place, the sources of its lost revenue, and the risk of creativity-related harms to the public, when taken together,” demonstrated that the fourth factor weighed in favor of fair use.59
In conclusion, Justice Breyer again hinted at his doubts about whether computer code was deserving of much or any copyright protection, pointing out the “fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world.”60 Having avoided the copyrightability question, Breyer was confident that “where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law.”61
Justice Clarence Thomas, joined by Justice Samuel Alito, penned a scathing dissent. He criticized the majority for failing to answer the key question of whether the software code was copyrightable. Thomas wrote that he would have held that the Java API was copyrightable, and Google’s use was “anything but fair.”62 As for the second factor, Justice Thomas rejected the Court’s distinction between declaring code and implementing code, noting that the majority’s denigration of the protectability of declaring code “taints the Court’s entire analysis.”63
Justice Thomas pointed out that the fourth factor—potential market harm—had previously been held to be the most important factor and the evidence of actual and potential harm from Google’s copying was “overwhelming.”64 First, the use eliminated the reasons manufacturers were willing to pay to install the Java platform. For example, after Android was released, Samsung’s contract with Oracle dropped from $40 million to about $1 million. Second, Google interfered with opportunities for Oracle to license the Java platform. As for Oracle not being able to break into the smartphone market, Justice Thomas found this unpersuasive because Oracle lost the ability to license its software to others trying to get into that market, stating by analogy that a “book author need not be able to personally convert a book into a film so long as he can license someone else to do so.”65 Finally, as to harm to the public, Justice Thomas found that concern to be speculative and that the harm to the public of allowing the free use of the code could be greater:
[I]f companies may now freely copy libraries of declaring code whenever it is more convenient than writing their own, others will likely hesitate to spend the resources Oracle did to create intuitive, well-organized libraries that attract programmers and could compete with Android. If the majority is worried about monopolization, it ought to consider whether Google is the greater threat.66
Justice Thomas described the first factor—the purpose and character of the use—as the “second-most important factor.” Thomas noted the “overwhelming commercial nature of Google’s copying” with Google earning, in 2015 alone, $18 billion from Android. This use that allowed Android to “dominate the global market share” was something that weighed heavily “if not decisively” against fair use. Although agreeing that sometimes a transformative use outweighs a use’s commercial nature, Justice Thomas noted that the Court has never “found fair use for copying that reaches into the tens of billions of dollars and wrecks the copyright holder’s market.”67 Moreover, the use was not transformative: “Google did not use Oracle’s code to teach or reverse engineer a system to ensure compatibility” but to avoid having to come up with its own code and “for the same exact purpose Oracle” used the code.68 Changing the definition of transformative, at least in the computer code context, into a use that will help others to create new products “eviscerates copyright” and “wrongly conflates transformative use with derivative use.”69
Finally, as to the third factor—amount and substantiality of the use—Justice Thomas pointed out that the “declaring code is what attracted programmers to the Java platform and why Google was so interested in that code” and thus was the “heart” of the work.70 Justice Thomas concluded that the majority decision ignored the copyrightability question because it could not “square its fundamentally flawed fair-use analysis with a finding that declaring code is copyrightable.” The majority was “us[ing] fair use to eviscerate Congress’ considered policy judgment” to allow for the copyright protectability of computer code.71
Final Copyright Majority Opinion: Unicolors v. H&M
One of Justice Breyer’s final majority opinions gave him another opportunity to shape copyright law. Plaintiff Unicolors was a company that held copyrights in various fabric designs and had sued H&M, a clothing retailer, for copyright infringement of some of these designs.72 H&M argued, however, that Unicolors’ registration certificate was invalid because the company had filed a single application for 31 separate fabric designs.73 A Copyright Office regulation specified that a single registration could include multiple works only if they were “included in the same unit of publication.”74
Yet Unicolors offered some of the designs to the public and others only to certain customers.75 Unicolors sought to take advantage of a safe harbor provision in the Copyright Act, which says a registration certificate with mistakes is still valid unless “that inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate.”76 The Ninth Circuit ruled that this safe harbor applied only to “good-faith mistakes of fact, not law.”77
Writing for the Court, Justice Breyer reversed the Ninth Circuit, holding that the safe harbor applied to mistakes of either fact or law.78 Unicolors, he wrote, made a legal labeling mistake. At the time of registration, the company did not know that the 31 designs could not be considered a single unit of publication.79 Justice Breyer rested his decision on the language of the statute, writing that it did not distinguish between factual and legal mistakes.80 He also reviewed the statute’s legislative history, finding that Congress wanted “to make it easier, not more difficult, for nonlawyers to obtain valid copyright registrations.”81 Justice Breyer’s final copyright opinion, then, marked one of the rare occasions in which he sided with copyright owners.
Justice Breyer’s Dissents
Several of Justice Breyer’s dissents focused on the need for limits to copyright holder protections. Those dissents pitted him against another intellectual property giant of the Court: Justice Ruth Bader Ginsburg, whose copyright jurisprudence was recently analyzed by one of this article’s authors.82 For example, in Eldred v. Ashcroft, Breyer pushed back against Justice Ginsburg’s majority opinion on the legality of the Copyright Term Extension Act, which extended the terms of both existing and future copyrights.83 The law’s retroactivity meant that works which had entered the public domain would be removed from it.84 Justice Breyer wrote that the extension went beyond Congress’s authority, and it would “make the copyright term not limited, but virtually perpetual.”85 He expressed concern about the costs imposed by the statute, such as higher royalties and the burdens of tracking down the owners of copyrights, as well as his view that it would not spur new creation.86
Justice Breyer repeated those concerns in his Golan v. Holder dissent, a case about the Uruguay Round Agreement Act (URAA).87 The United States joined the Berne Convention in March 1989. Article 18 of the Berne Convention stated that the treaty covered all works that were still copyrighted in their source country and that had not entered the public domain in that country. Thus, to comply with that article, the United States would have been required to grant copyright protection on foreign works that were never copyrighted before in the United States and thus were in the public domain in the United States. In joining the Berne Convention, however, the United States rejected this potential retroactive protection and applied Berne treaty protections only to works first published after March 1, 1989.
In the face of harsh international criticism for this rejection of retroactivity, in 1994, the United States passed the URAA, which granted copyright protection to works that had entered the public domain in the United States but not in the countries where they originated.88 Justice Breyer sided with the petitioners, a group of orchestra conductors, musicians, and publishers who lost free access to the works that were taken out of the public domain.89 Again, he was concerned that the statute did “not encourage anyone to produce a single new work,” and that it would instead “bestow[] monetary rewards only on owners of old works.”90 Justice Breyer went so far as to raise First Amendment concerns, arguing that taking works out of the public domain “abridges free speech.”91
Finally, in Petrella v. MGM, Justice Breyer once again countered Justice Ginsburg, this time on the application of laches to copyright claims.92 Justice Ginsburg held that the doctrine was not applicable because the copyright statute of limitations would address any delays in bringing claims.93 Justice Breyer, in dissent, pointed out the issues that could arise if a defendant sold an allegedly infringing work on a continuing basis.94 In such a case, he argued, a plaintiff could lie in wait until the defendant’s production became profitable, and then sue every three years for the next 70 years.95 Justice Breyer’s dissents in Petrella and the cases cited above demonstrated his desire for public benefits over strict copyright owner protection in the copyright realm.
A New Canvas: Justice Ketanji Brown Jackson’s Copyright Approach
A natural place to begin reviewing Justice Ketanji Brown Jackson’s copyright jurisprudence is to review her time clerking for Justice Breyer. In that time, however, the Court heard only one copyright case, and that case did not present substantive issues. Raquel v. Education Management Corp. concerned a misstatement in an artist’s copyright registration. The Court, in an unsigned one-sentence opinion, merely remanded the case for consideration in light of an amicus brief written by the Solicitor General.96
Once she reached the federal bench as a judge for the D.C. Circuit, however, Justice Jackson authored two opinions, at least one of which shines a little light on her approach to copyright law. The first, Alliance of Artists and Recording Companies, Inc. v. General Motors Co., reveals that, like her predecessor, Justice Jackson is adept at applying copyright law to emerging technologies. The petitioner in the case was a nonprofit that, pursuant to the Audio Home Recording Act of 1992 (AHRA), collected royalties from manufacturers of digital audio recording devices.97 Under the AHRA, those manufacturers and distributors also had to install copying control technology on their devices.98 The Alliance argued that certain audio equipment in cars made by GMC, Ford, and other companies counted as recording devices, meaning manufacturers were obligated to pay royalties and utilize copying control technologies.99 The technology could record songs from CDs to a car’s hard drive for convenient playback.100
Engaging in a careful analysis of the statutory language, then Judge Jackson wrote that the car technology likely did not count as a recording device under the AHRA because it was incapable of producing a new CD or cassette tape.101 She added that any uncertainty about what “Congress might have thought of twenty-first century technology is all the more reason to adhere closely to the carefully negotiated statutory text.”102 However, because the matter came before her on a motion to dismiss for failure to state a claim and the capabilities of the technology were not fully known, Justice Jackson ruled for the plaintiffs, allowing the case to move forward so that discovery could be conducted on whether any of the defendant’s recording devices actually produced recordings that met the statutory elements of “digital music recording.”103
Justice Jackson’s other D.C. Circuit copyright case was more straightforward and less illuminating about her jurisprudence. In Buchanan v. Sony Music Entertainment, the plaintiff was a songwriter who claimed that he distributed songs to record companies, which then appropriated his music and lyrics.104 He alleged 56 individual acts of copyright infringement, tied to such hits as Beyonce’s “Single Ladies,” Ed Sheeran’s “Shape of You,” and TLC’s “No Scrubs.”105 He also claimed that Universal Pictures used the lyrics of one of his songs for the plot of the Fast and Furious movie franchise.106
Although the plaintiff sought “$1 Quadrillion” in damages, it turned out that he had only copyrighted one of his songs before initiating the lawsuit.107 While the plaintiff had a valid copyright for the song that allegedly launched the Fast and Furious franchise, Jackson held that he failed to plausibly plead that the defendants had access to the plaintiff’s work, nor had the defendants infringed any protectible elements of that work.108 Thus, there is little to glean from this decision regarding Justice Jackson’s copyright jurisprudence.
Justice Jackson’s recent confirmation proceedings provided another opportunity for insight into her copyright jurisprudence. In particular, a group of senators requested her written responses to a series of detailed legal questions, some of which were focused on intellectual property. Senator Thom Tillis (R-NC) asked for Jackson’s opinion on whether nonhuman artificial intelligence (AI) systems should be granted authorship/ownership status.109 In response, the then nominee noted that there were “important and novel interpretive questions” regarding the issue, but the Copyright Office itself had said that AI systems could not be considered authors.110 She declined to comment further, pointing out that it was ultimately a public policy decision for Congress.111
She responded similarly to a question from Senator Marsha Blackburn (R-TN) about exemptions for broadcasters that fail to pay royalties to artists featured on their radio stations.112 Jackson also declined to comment on the application of the Takings Clause to copyright because there is ongoing litigation on the matter that could reach the Court.113 She did, however, answer Tillis’s question about which of the four fair use factors should count the most in a fair use analysis. Jackson responded that in Harper & Row, Publishers, Inc. v. Nation Enterprises, the Court itself “indicated that the final factor, the effect of the use upon the potential market for or value of the copyrighted work, ‘is undoubtedly the single most important element of fair use.’”114
Justice Jackson’s approach to fair use and copyright law in general should become clearer this fall, as the Court considers Warhol Foundation v. Goldsmith, the case involving pop artist Andy Warhol’s use without permission in his own work of Lynn Goldsmith’s photograph of Prince. Like the man she once clerked for, Justice Jackson has an opportunity to leave a lasting mark on intellectual property. Although it is too early to tell whether she will follow her predecessor’s emphasis on protecting public interests in access and use of creative works over the economic interests of copyright holders, Warhol Foundation v. Goldsmith will be a case that might shed some light on the newest justice’s copyright views.
Endnotes
1. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, SCOTUSblog, https://www.scotusblog.com/case-files/cases/andy-warhol-foundation-for-the-visual-arts-inc-v-goldsmith/ (last visited July 8, 2022).
2. 568 U.S. 519 (2013).
3. 573 U.S. 431 (2014).
4. 141 S. Ct. 1183 (2021).
5. 142 S. Ct. 941 (2022).
6. 537 U.S. 186 (2003) (Breyer, J., dissenting).
7. 565 U.S. 302 (2012) (Breyer, J., dissenting).
8. 572 U.S. 663 (2014) (Breyer, J., dissenting).
9. 531 U.S. 952 (2000).
10. F. Supp. 3d 8 (D.D.C. 2016).
11. No. 18-cv-3028, 2020 WL 2735592 (D.D.C. May 26, 2020).
12. Stephen G. Breyer, The Uneasy Case for Copyright: A Look Back Across Four Decades, 79 Geo.Wash. L. Rev. 1635, 1635 (2011).
13. Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281, 323 (1970).
14. See id. at 321, 340–42.
15. Ryan Davis, Breyer’s Rulings Shaped by Wariness of Intellectual Property, Law360 (Jan. 27, 2022), https://www.law360.com/articles/1458997/breyer-s-rulings-shaped-by-wariness-of-intellectual-property.
16. Jonathan Band, Justice Breyer’s Balanced Copyright Opinions, DisCo (Jan. 28, 2022), https://www.project-disco.org/intellectual-property/012822-justice-breyers-balanced-copyright-opinions.
17. 568 U.S. 519, 524–25 (2013).
18. Id. at 526.
19. Id. at 525–26.
20. Id. at 527.
21. Id.
22. Id.
23. Id. at 525.
24. Id. at 523 (emphasis in text).
25. Id. at 528.
26. Id. at 530.
27. Id. at 540.
28. Id. at 541–43.
29. Id. at 541–42.
30. 573 U.S. 431, 436 (2014).
31. Id. at 436–37.
32. Id. at 437.
33. Id. (citing 17 U.S.C. § 106(4)).
34. Id. at 438.
35. Id.
36. Id. at 444.
37. Id. at 441.
38. Id. at 445.
39. Id.
40. Id. at 446–47.
41. Id. at 449.
42. As set forth below, the dissenting justices saw the majority decision as an incorrect crushing blow to Oracle that ignored the intent of Congress to protect computer code.
43. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1190 (2021).
44. Id. at 1190–91.
45. Id. at 1191.
46. Id.
47. Id. at 1195.
48. Id. at 1197.
49. Id. at 1199.
50. Id. at 1197.
51. Id. at 1201.
52. Id. at 1202.
53. Id. at 1203–04.
54. Id. at 1204.
55. Id. at 1205.
56. Id.
57. Id. at 1206–07.
58. Id. at 1208.
59. Id.
60. Id. (citing Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 820 (1st Cir. 1995)).
61. Id. at 1209.
62. Id. at 1211 (Thomas, J., dissenting).
63. Id. at 1216.
64. Id.
65. Id. at 1217.
66. Id. at 1218.
67. Id.
68. Id. at 1219.
69. Id.
70. Id. at 1220.
71. Id.
72. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 142 S. Ct. 941, 945 (2022).
73. Id.
74. Id.
75. Id. at 945–46.
76. Id. (emphasis in original).
77. Id. at 946.
78. Id. at 945.
79. Id. at 947.
80. Id.
81. Id. at 948.
82. See Lincoln Bandlow & Giselle M. Girones, RBG and ACB on Circle C: A Copyright Defender History and a Copyright Jurisprudence Mystery, 36 Commc’n Law., no. 2, Summer 2021.
83. See 537 U.S. 186, 193–94 (2003).
84. Id. at 193.
85. Id. at 243.
86. Id. at 248, 260.
87. 565 U.S. 302, 306 (2012).
88. Id. at 307.
89. Id. at 307, 345 (Breyer, J., dissenting).
90. Id. at 345.
91. Id. at 358.
92. See 572 U.S. 663 (2014).
93. Id. at 677.
94. Id. at 689 (Breyer, J., dissenting).
95. Id.
96. 531 U.S. 952, 952 (2000).
97. All. of Artists & Recording Cos. v. Gen. Motors Co., 162 F. Supp. 3d 8, 8–9 (D.D.C. 2016).
98. Id.
99. Id. at 9.
100. Id. at 14.
101. Id. at 17.
102. Id. at 20.
103. Id. at 24. The plaintiff later filed a motion for Jackson to reconsider her interpretation of the AHRA, arguing the court misunderstood the statute’s legislative history. It also filed a motion to clarify the court’s holding as it related to a certain type of device (a hard drive with partitioned segments). Jackson rejected the motion for consideration that she found to regard a “tangential point of legislative history” and that the plaintiff “failed to present a persuasive argument” that she had “fundamentally misapprehended the legislative history related to its statutory interpretation in a manner that warrants reconsideration.” All. of Artists & Recording Cos. v. Gen. Motors Co., 306 F. Supp. 3d 413, 417–18 (D.D.C. 2016). As for the motion for clarification, Jackson clarified her prior opinion regarding whether a hard drive partition could constitute a “digital audio copied recording.” Id. at 419. This latter decision by Jackson focused primarily on procedural issues and not much copyright substance beyond specifics of the terns used in the AHRA.
104. No. 18-cv-3028, 2020 WL 2735592, at *1 (D.D.C. May 26, 2020).
105. Id. at *1–2.
106. Id. at *2.
107. Id. at *2–3.
108. Id. at *6–7.
109. Hearing Before the S. Judiciary Comm. for the Nomination of Ketanji Brown Jackson to Be an Associate Justice of the Supreme Court of the United States, 117th Cong. 290 (2022) (Senator Thom Tillis, Questions for the Record), available at https://www.judiciary.senate.gov/judge-ketanji-brown-jackson.
110. Id. at 290–91.
111. Id. at 291.
112. Id. at 330 (Senator Marsha Blackburn, Questions for the Record).
113. Id. at 293 (Senator Thom Tillis, Questions for the Record).
114. Id. at 298 (quoting Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 566 (1985)).