Is the Supreme Court breathtakingly dishonest or just completely clueless?

Justice Stephen Breyer

On Wednesday, March 22, 2017, the United States Supreme Court issued a decision in Star Athletica LLC v. Varsity Brands, Inc. The case called upon the Court, in the opinion of the majority, to address the thorny issue of conceptual separability; a test for which there was absolutely no agreement among the Regional Circuit Courts of Appeal.

The question addressed by the majority was whether designs on cheerleader uniforms could be copyrighted separate from the uniform itself, which is not copyrightable because useful articles are not copyright protectable. The Supreme Court, in an opinion by Justice Thomas, joined by Chief Justice Roberts and Justices Alito, Sotomayor and Kagan, held that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.” (Slip op. at 17) The Court went on to also determine that the cheerleader uniforms satisfied this test and, therefore, affirmed the Court of Appeals for the Sixth Circuit. Id.

The majority opinion, although in favor of the copyright holder, was not without certain problems. First, Justice Ginsburg, who concurred in the outcome but not in the opinion, was exactly right. The Court did not need to reach the issue of conceptual separability in this case. Ginsburg wrote: “Consideration of [separability] test is unwarranted because the designs at issue are not designs of useful articles. Instead, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles.” (Ginsburg concurring at 1).

Regardless of the fact that Justice Ginsburg was alone correct, the majority has settled the law on conceptual separability, which should be positive. At least now the law won’t depend upon where the lawsuit is filed.

More difficult to swallow, however, were several passages from the majority opinion and dissent by Justice Breyer that explained the role of the Supreme Court in interpreting statutes and how they are not searching for the best policy, but the correct statutory interpretation.

Thomas wrote:

This is not a free-ranging search for the best copyright policy, but rather “depends solely on statutory interpretation.” Mazer v. Stein, 347 U. S. 201, 214 (1954). “The controlling principle in this case is the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written.” Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992). We thus begin and end our inquiry with the text, giving each word its “ordinary, contemporary, common meaning.” Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207 (1997) (internal quotation marks omitted). (Slip op. at 6)

Thomas also wrote: “Petitioner next argues that we should incorporate two “objective” components… We reject this argument because neither consideration is grounded in the text of the statute.” (Slip op. at 15-16).

Justice Breyer, in dissent, also wrote: “The Constitution grants Congress primary responsibility for assessing comparative costs and benefits and drawing copyright’s statutory lines. Courts must respect those lines and not grant copyright protection where Congress has decided not to do so.” (Breyer dissent at 8)

These statements echo what Justice Alito wrote in SCA Hygiene, about the role of the Supreme Court as interpreter and not as legislator. The problem is this is simply NOT what the Supreme Court does in patent cases. This deference to Congress is convenient, nothing more. It is patronizing lip service that insults the intelligence of patent professionals familiar with Supreme Court patent jurisprudence, particularly the recent pronouncements on patent eligibility, which ignore the statute entirely.

35 U.S.C. 101 says that claims are patent eligible if they are written to cover a machine, a process, an article of manufacture or a compound. There are not exceptions in the statute, yet the Supreme Court in their infinite wisdom have created three “judicial exceptions” to patent eligibility. These judicial exceptions are nothing more than lawless, extra-statutory requirements imposed by the Supreme Court because they think they know better. There is no support anywhere in the statute or Constitution for “judicial exceptions,” and the very label the Court uses to describe them – “judicial exceptions” – confirms that they are above and beyond the statute.

In Star Athletica Breyer laments that the majority is ignoring the statute. On Tuesday in SCA Hygiene Justice Breyer similarly lamented that the Court was reaching a decision that upended decades of well established law and settled expectations. These concerns were simply non-existent when Justice Breyer issued the Supreme Court’s opinion in Mayo v. Prometheus, a decision that unceremoniously overruled Diamond v. Diehr and ignored the Patent Act itself by purposefully conflating novelty and nonobviousness with patent eligibility. Then Associate Justice Rehnquist specifically wrote such a conflation was erroneous in Diehr some 31 years earlier. Breyer was also not concerned with well-established law in AMP v. Myriad, which overruled Diamond v. Chakrabarty, or in KSR v. Teleflex, which directly and substantially rewrote generations of obviousness law and for the first time made it possible to reject claims as being obvious to try.

These seemingly innocent comments demonstrate a breathtaking dishonesty, which is hardly a newsworthy conclusion, or even much of a revelation to anyone in the patent community. Still, over the past few days the drivel that has been sprinkled into Supreme Court opinions has been particularly nauseating. The ends justify the means for the Supreme Court. When it is convenient they defer to Congress and wax poetically about the importance of stare decisis, as they actually had the gall to do in Kimble v. Marvel Entertainment. When adhering to well-established rules and expectations of an entire industry is inconvenient, they create exceptions to statutes, ignore statutory schemes altogether, and overrule generations of well-established law.

Perhaps even more disturbing, in dissent in Star Athletica Justice Breyer went on explained that in 1850 Lord Macaulay referred to copyrights in books as a tax on readers. Justice Breyer did not point out how ridiculous it is to think of copyrights in such an ignorant manner, but instead cited this nonsense with approval as if it is actually true! Breyer did not explain, perhaps because he himself doesn’t understand, that the existence of copyrights allows for creators to be able to create and then if the creation is desired in the market to make more and more content.

You see, it is a simple concept. There are limited hours in the day and everyone has basic requirements (i.e., food, shelter, etc.). If you cannot get paid for creating you have to spend less time creating. So copyrights allow creators to reap rewards from their labors to the extent that their work is validated in the marketplace. Seriously, for someone who loves to pontificate and professes such great knowledge of economics and the economy, Justice Breyer seems to know very little about how the real world works, very little about intellectual property, and absolutely nothing about creators and the business of creation.

In any event, Justice Breyer proceeded to proclaim: “But Macaulay also made clear that copyright protection imposes costs. Those costs include the higher prices that can accompany the grant of a copyright monopoly.” (Breyer dissent at 7)

A copyright monopoly? I’ve heard many ignorant things from those who think they understand intellectual property, but this easily ranks in the top 10, and has to be a serious challenger for the most ridiculous statements ever made. Copyrights do NOT create a monopoly and they do NOT provide monopoly rights. The Court incorrectly refers to a patent as a monopoly, but it takes a special kind of bias (and/or ignorance) to refer to a copyright as a monopoly. Allow me to explain.

First, let’s start with the obvious. You cannot have a monopoly in something for which there is no market. Copyrights attach at creation, and there are many millions, if not many billions, of copyright works. The overwhelming majority of copyrighted works will never have a market, they will never be commercialized, and if commercialized no one will ever be a buyer. Without a market there cannot be a monopoly. For someone who likes to think of himself as an antitrust expert I would expect Justice Breyer to understand this fundamental truism about monopolies, markets and market power.

Next, copyrights are encumbered by very real and substantial fair use rights. These fair use rights are not subject to the permission of the copyright owner, but instead are freely available to the world.

Finally, piracy and copyright infringement has always been a problem, but in the Internet Age it is easier than ever to rip off content creators. The Digital Millennium Copyright Act (DMCA) is largely ineffective today. Content Delivery Networks refuse to acknowledge DMCA take down notices claiming they do not host infringing content on servers despite the fact that the entire purpose of a CDN is to host content on not one, but many servers that are closer to the recipient than the original host server. Even when DMCA notices are effective infringers simply set up other websites and content creators are left to constantly chase, which could be a full-time job. And as a content creator who experiences sometimes widespread infringement perpetrated even by intellectual property professionals who wholesale copy our original content I can tell you it sure feels at times like we fight a losing battle.

A copyright monopoly? If copyrights are a monopoly it is the most bizarre monopoly I’ve ever seen. All the power is held by infringers, copyright owners must chase, be vigilant, and still fight a losing battle. Unless you are a major studio, record label or giant software company you won’t get help from the government, and Congress caved when threatened over SOPA.

None of this seems to particularly describe the type of power arrangement typically seen in a monopolistic relationship because copyrights do NOT convey monopolies, period. Frankly, I would love to have a discussion with Justice Breyer about how and why he could make such an idiotic remark.

The fact that Justice Breyer wrote the words “copyright monopoly” demonstrates a breathtaking dishonesty, or perhaps that he is just completely clueless. Whatever the case may be, having such uninformed jurists making these decisions and pontificating in grandiose ways about issues they clearly do not understand is a serious problem for the Supreme Court. They like to think they know everything about everything, and instead they continually demonstrate they are a bunch of emperors without any clothes, standing naked in the street.