On Wednesday, March 22, 2017, the United States Supreme Court issued a decision in Star Athletica LLC v. Varsity Brands, Inc. The majority opinion shed light on the rather thorny issue of conceptual separability; a test for which there was absolutely no agreement. In a 6-2 decision, with Justice Ginsburg only concurring in the result and preferring not to reach the issue of conceptual separability, the Court 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)
As I wrote the day after the decision was issued, the statement from the Court that most bothered me was an unnecessary and rather uniformed statement made by Justice Breyer in dissent, and joined by Justice Kennedy. In his dissenting opinion, Breyer cited with approval the view that a copyright in a book is nothing more than a tax on readers, which is as ludicrous as it sounds.
Years ago Lord Macaulay drew attention to the problem when he described copyright in books as a “tax on readers for the purpose of giving a bounty to writers.” 56 Parl. Deb. (3d Ser.) (1841) 341, 350. He called attention to the main benefit of copyright protection, which is to provide an incentive to produce copyrightable works and thereby “promote the Progress of Science and useful Arts.” U. S. Const., Art. I, §8, cl. 8. 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. They also can include (for those wishing to display, sell, or perform a design, film, work of art, or piece of music, for example) the costs of discovering whether there are previous copyrights, of contacting copyright holders, and of securing permission to copy. Eldred v. Ashcroft, 537 U. S. 186, 248–252 (2003) (BREYER, J., dissenting). Sometimes, as Thomas Jefferson wrote to James Madison, costs can outweigh “the benefit even of limited monopolies.” Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 443 (J. Boyd ed. 1956) (Jefferson Letter). And that is particularly true in light of the fact that Congress has extended the “limited Times” of protection, U. S. Const., Art. I, §8, cl. 8, from the “14 years” of Jefferson’s day to potentially more than a century today. Jefferson Letter 443; see also Eldred, supra, at 246–252 (opinion of BREYER, J.).
Rarely will you ever see so much nonsense packed so tightly, even in a Supreme Court opinion.
Several things jump out immediately upon reading this passage. First, it seems that Justice Breyer likes citing his own dissenting opinions, here providing himself in a previous decision as a source for one utterly ridiculous statement.
There is a cost associated with discovering whether there are previous copyrights and securing permission to copy? Is Justice Breyer really suggesting that the grant of rights to copyright holders is too onerous for copycats and plagiarists to bear? What about this radical idea Justice Breyer – don’t copy what you didn’t create! If you cannot acquire the rights then just don’t copy, period.
To lament the lengths copycats and plagiarists must go to secure rights from copyright holders is truly bizarre. The Copyright Act is already full of fair use provisions that carve away at the heart of what Article I, Section 8, Clause 8 of the Constitution defines as an exclusive right. But let’s not pretend – a copyright is anything but exclusive. Not only are there generous fair use provisions available to the public to use copyright matter the instant that it is created, but there is an independent creation defense. So, if you create what I created and you didn’t copy then you too have a copyright and the original creator has absolutely no recourse. Call me crazy, but that doesn’t sound very exclusive to me.
Another thing that jumps out when you read Justice Breyer’s dissent is this notion that a copyright is somehow a tax.
The word “tax,” when not associated with the traditional meaning of a government-required levy, is defined as “a burdensome charge, obligation, duty or demand.” Calling a copyright a tax is simply inappropriate, and extremely disrespectful to content creators who increasingly find it difficult if not impossible to find even a modest level of remuneration for the fruit of their labors. It also shows a complete and total lack of understanding of the industry, and while I don’t expect anyone to know everything about everything, if Justice Breyer is going to pontificate he really ought to know what he is talking about and not speak from a position of ignorance.
In April 2016, I had the opportunity to interview Mary Rasenberger, the Executive Director of the Author’s guild. Rasenberger had a very dire message about the state of the industry from the author’s perspective, a message based on fact. She explained:
And this takes me back to the fact that most authors having a hard time now. We did a survey of our members about a year ago.
We kept hearing from our members and others, just anecdotally, that they’re doing worse, they’re having a harder time making a living now than they used to. So about a year ago, right after I came to the Guild, we thought, well, let’s try to put some numbers on this and see if there is any truth to this being a general trend. We found from our survey that in general authors are in fact doing much worse. The mean income for full-time authors is down 30% from 2009 when we last did a survey—that’s a huge drop. And it’s even more shocking when you look at the actual dollars. The mean income went from $25,000 in 2009 to $17,500 in 2015. That’s getting very close to the poverty line. It was always known that you don’t go into writing to get rich. Sure, some authors do very well, but they are the very, very few and far between. Most professional authors earn at best a middle class living. So the problem with the decrease in income to authors in the last six years is that writing as a profession becomes unsustainable. If you can’t keep writing for a living, you’ve got to do something else, and many authors are starting to. People who’ve written books their entire careers, who have written a dozen or so books, they’re having to find other types of work. Our culture suffers as a result because we don’t have professionals writing the types of books that will further our literary culture, further our knowledge, our sense of our place on the world—the kinds of books that have a good chance of standing the test of time.
The only thing Rasenberger potentially gets incorrect is that $17,500 may already be below the poverty line depending upon where you live and the size of the family unit.
Tax means “a burdensome charge.” Authors who are making a wage that is at or below the poverty line create a burdensome charge for readers? Well when you put it that way what Justice Breyer wrote just sounds stupid.
I’m sure Breyer’s defenders will point to the money made by large publishing companies that make large sums selling the books written by those extraordinarily small number of blockbuster authors, but I don’t see where Breyer left any room for nuance or factual reality for that matter. What about the overwhelming majority of authors who make practically nothing? What about the fact that nonsense like this said when it is unnecessary to say influences the law that affects all rights holders and all disputes? There is a reason judges, and in particular Justices of the Supreme Court, are not supposed to say more than is necessary to decide a case. Without consideration of a multitude of important issues seemingly innocuous statements can easily be absurd in the broader context, not to mention set bad precedent.
In my original article on this case I lambasted Breyer for calling a copyright a monopoly, which anyone who is at all knowledgeable about copyrights knows is just not true. I won’t regurgitate that argument here, but suffice it to say that not only are there those generous fair use rights, but stopping infringement in the Internet Age is practically impossible. Yet we have at least two Justices of the United States Supreme Court who think they know enough about the subject matter to conclude that a copyright provides owners a monopoly. As a content creator, I’ve never seen any evidence of any monopoly power, and I seriously doubt those authors that live at or below the poverty line have seen evidence of such monopoly power either. Perhaps Justice Breyer can explain to those authors who live at or below the poverty line why their copyrights are so troubling to him and why they are nothing more than money-grubbing monopolists that require busting.
When you are a Supreme Court Justice and not accountable to anyone you get to say ridiculous things, cite yourself and leave a mess in your wake. The rest of us just have to deal with the nonsense and hope such myopic views of the world based on a complete lack of understanding won’t do real harm. Unfortunately, in recent years, the Supreme Court has done far more harm than good. I guess we just have to try and survive for now.