A Look Ahead to Key Copyright Cases
J. Michael Keyes
There is a trio of copyright cases pending before the United State Supreme Court. Each one will be important to watch as the calendar turns to 2020.
Oracle v. Google. Unless something drastic happens, this will be the blockbuster IP case of SCOTUS’s term. It’s potentially the most consequential copyright case in a generation. Three things on Oracle v. Google:
- One of the issues that the Court may decide is the scope of copyright protection for software. Google had early success below in convincing the trial judge that the snippets of copied code were not copyrightable. Google may urge to have the Court take a look at this issue anew.
- Another huge implication is the scope of fair use. The jury found that Google’s use was “fair” and that it was not liable for infringement. The appellate court overturned that jury conclusion and found that Google’s use was not fair as a matter of law. The Supreme Court will likely wade into this thicket and provide guidance on the scope of fair use in the context of software code and what role an appellate court plays in reviewing jury decisions in that regard.
- An issue that is not directly before the Court but will be implicated is the issue of damages. If Google is ultimately liable for infringement, the damages claim will be well into the billions. It’s a massive sum that underscores what is at stake and the importance of the issues.
Georgia v. Public.Resource.Org Inc. The Court is set to hear arguments on December 2, 2019. The issue here is whether the State of Georgia can claim copyright protection in secondary resource material produced by the state’s Attorney General. Specifically, Georgia publishes its state laws with annotations that include citations to relevant cases as well as analysis and opinions of the state’s top attorney. The state claims it has the right to protect this “work of authorship” just like anyone else. The public interest group, Public.Resource.Org, sees the issue differently and claims that the state has no right to “lock up” its annotated version of the law. The trial court agreed with the State, the 11th Circuit reversed, and SCOTUS is now poised to let us know how this Peach State fracas will end.
Allen v. Cooper. This case is also pending before SCOTUS, which heard oral argument in November. The key issue is whether states are immune from copyright infringement claims. The Copyright Remedies Clarification Act of 1990 (the “CRCA”) purports to open the door to such claims, but a number of federal courts have found the Act unconstitutional. There is existing SCOTUS precedent that suggests the CRCA is in trouble (and a number of Justices seemed skeptical during oral argument about the constitutionality of CRCA). On the other hand, though, giving states the indiscriminate right to infringe copyrights with impunity may ultimately trouble the Court. It’s a big “states rights” case, with big implication.
J. Michael Keyes is an intellectual property attorney
and partner at the international law firm Dorsey & Whitney