October 14, 2020 Read More
As I write, the Senate Judiciary Committee is considering Judge Amy Coney Barrett to fill the Supreme Court vacancy left by Justice Ruth Bader Ginsburg, whose death, like her life, was an extraordinary American story. A pioneering scholar, lawyer, and jurist throughout her career, Ginsburg—the beloved RBG—was dedicated to the principle of equal justice for all people. She smashed glass ceilings until the very end, becoming the first woman in the history of the United States to lie in State at the Capitol, the first Jewish-American to do so, and only the second Supreme Court Justice to do so after William Howard Taft, who had also served as President.
The publishing industry, devoted as we are to the democratic exchange of ideas, owes more than a debt of gratitude to Justice Ginsburg for her unwavering commitment to the gender equalities, minority protections, and LGBTQ rights that have given voice to new leaders and fresh perspectives in the 21st century. We are also grateful for her copyright leadership on the bench, which was clear, consistent, and straightforward. Indeed, as a jurist, Ginsburg repeatedly upheld the Constitutional basis of copyright law, the plain meaning of the statute, the right of Congress to amend the statute, and the overall importance of a well-functioning copyright system to free speech and the dissemination of knowledge.
Assuming Judge Barrett joins the Supreme Court, we have little to go on regarding her views or disposition towards copyright jurisprudence, but what we do know is this: Barrett is a conservative scholar who embraces the strict judicial perspectives of Justice Scalia. “His judicial philosophy is mine, too,” Barrett has said of her mentor, “A judge must apply the law as written.”
If confirmed, it is possible that Barrett will look to Ginsburg’s copyright decisions as guideposts, a proposition that is more than theoretical if one considers that Scalia joined every copyright decision that Ginsburg authored during their mutual service on the Court. Although the pair famously disagreed on judicial philosophy—Scalia devoted to original text and Ginsburg devoted to a living Constitution—they were mainly aligned on questions of copyright interpretation. The alignment may have had something to do with their shared interest in the opera and other arts, but more likely had to do with the fact that the Copyright Act has clear Constitutional origins and extensive statutory text.
While serving alongside Scalia, Ginsburg wrote the majority opinion in four copyright cases and a major dissent in another, all of which Scalia joined. Two of her opinions—Golan v. Holder and Eldred v. Ashcroft—involved Constitutional challenges against the government, which she handily shut down.
The 2012 Golan case questioned the authority of Congress to restore lapsed copyrights in certain foreign works as part of an intergovernmental negotiation. In rejecting an assertion that copyright amendments must be limited to provisions that incentivize new authorship, Ginsburg explained that Congress has wide latitude to create a copyright regime that achieves the overall objectives of the Copyright Clause, including creating international agreements. She expressly rejected the assertion that copyright is singularly about new authorship, noting that even from the earliest days of the United States, the Framers were focused not only on authorship, but also on other issues, such as publication and dissemination. Scalia agreed.
Nearly a decade earlier, the Court’s 2003 decision in Eldred upheld Congress’ decision to extend copyright term by 20 years, a premise that petitioners had challenged under both the Copyright Clause and the First Amendment. Rejecting both arguments, Ginsburg explained that “copyright’s limited monopolies are compatible with free speech principles” and “copyright’s purpose is to promote the creation and publication of free expression.” Scalia signed on.
Although Scalia did not take the pen on copyright decisions, he voted with Ginsburg in every case where she controlled the pen. In 2001, he joined her very first copyright opinion for the Court in New York Times v. Tasini. Her opinion rejected the premise that publishers could republish authors’ print articles in a database without further permission, because the database did not meet the statutory definition of a revised collective work.
In 2014, in Petrella v. Metro-Goldwyn-Mayer, Scalia joined Ginsburg in rejecting the equitable doctrine of laches, after a movie studio claimed that it was unfair for a copyright owner (the heir of the author who wrote the screenplay for Raging Bull) to delay the filing of her lawsuit over many years. Ginsburg refused to curtail the copyright owner’s relief, noting that the suit was properly filed within the statutory window, and that it is wholly reasonable under the Copyright Act for a copyright owner to consider the defendant’s profits in deciding whether and when to file suit.
Of course, Ginsburg didn’t always write for the majority, and Scalia parted ways with his colleague on a couple of occasions. In 2009, both Justices supported the Court’s unanimous opinion penned by Justice Souter in Metro-Goldwyn-Mayer v. Grokster (the famous file-sharing case), but Scalia did not go so far as to join Ginsburg’s deep dive concurrence into the Ninth Circuit’s misapplication of the Sony Betamax case.
More puzzling—and more extreme because of the defendant’s purposeful efforts to elude the Copyright Act—was Scalia’s dissent in the 2014 case American Broadcasting Company v. Aereo, which was the final copyright case of his career. Here, Scalia declined to join Justices Breyer, Roberts, Kennedy, Ginsburg, Sotomayor, and Kagan in finding Aereo liable for retransmitting television content over the Internet without permission. In his dissent, joined by Thomas and Alito, Scalia rejected the premise that Aereo performed like a cable system under the Copyright Act, calling the majority’s reasoning, “guilt by resemblance.” Pointing to Congress, he quipped, “it is not our job to apply laws that have not yet been written.”
Ginsburg’s only copyright dissent came in the 2013 publishing case Kirtsaeng v. John Wiley & Sons. Justice Breyer, writing for the majority, declined to stop an unauthorized seller from importing textbooks into the United States, although it was clear that the publisher had manufactured and priced the books specifically and solely for foreign markets. Rejecting the majority’s reasoning, Ginsburg said that both the text and legislative history of the Copyright Act made clear that Congress had enacted a national, not international, first sale doctrine. True to form, Scalia joined Ginsburg’s dissent, except for the parts where she discussed legislative history.
Copyright questions are not a part of Judge Barrett’s confirmation hearings, as the Senate is focused as it should be on both her qualifications and pervading questions of religion, healthcare, and social justice. But if Barrett is confirmed, it is inevitable that she will hear copyright cases on any number of issues, from exclusive rights to fair use to first sale. If so, Barrett would be exceptionally well-served by looking to the wisdom, clarity, and precedent of Ginsburg’s writings, as their mutual friend and colleague would surely have agreed.
Maria A. Pallante is President and CEO of AAP and a former Register of Copyrights. She appreciates the research assistance of law clerk Renata C. Mitchell, a student at the George Washington University Law School.
September 10, 2020 Read More
I recently spoke with former Register of Copyrights Maria Pallante about the copyright case Google v. Oracle America pending before the U.S. Supreme Court. Maria served for more than 10 years as U.S. Copyright Office senior counsel, including nearly six years at the helm of the Office as Register of Copyrights until 2016. She is currently the President and CEO of the Association of American Publishers (AAP), which filed an amicus curiae brief in the case. The Copyright Alliance filed a brief as well.
In 2010, Oracle sued Google for copying and distributing huge amounts of Oracle’s popular Java SE Code in its Android phones, alleging a number of serious claims including copyright infringement. Following several procedural developments in the case, the Court of Appeals for the Federal Circuit sided with Oracle in 2014, reversing a district court opinion and jury determination in favor of Google.
To be clear, Google admits that it copied Oracle’s code without permission — more than 11,000 lines of code! In its filings with the Supreme Court, it continues to make two sweeping arguments, one asserting fair use and the other questioning the copyrightability of Java Code.
I was pleased to have the opportunity to ask Maria’s legal opinions regarding the case – check it out on the Copyright Alliance blog here.
Keith Kupferschmid is President and CEO of the Copyright Alliance.
September 9, 2020 Read More
It is around this time of the year that the days seem shorter and the air slightly cooler, all signs that summer is drawing to an end and fall is inching closer. Typically, the Nation’s K-12 students would be trading their summer freedoms for the classroom setting, ready for new academic challenges and excited to reunite with teachers and peers.
But this fall is anything but typical. As schools remain adversely and profoundly affected by the COVID-19 pandemic, teachers and students are picking up where they left off last spring— uprooted from the familiarity of their classrooms, abruptly forced to abandon their daily routines, teaching styles, learning strategies and social interactions. With entire school communities now immersed in remote education, publishers have joined stakeholders from across the education ecosystem, including teachers, students and parents, to incorporate lessons learned as well as unique digital opportunities.
How will such changes come about, exactly? How do we apply lessons learned with the least disruption possible? Although many countries hard hit by COVID-19 have a national education system—making the question of when and how to reopen schools a top-down decision—it is important to remember that education in the United States is governed at state and local levels. Response plans are therefore governed by community-specific factors, including local infection rates and diverging political perspectives, which make for a spectrum of decisions across the country.
New York and California, for example, home to our two largest school districts, have enacted very different laws and policies. Citing a record low infection rate, New York’s Governor granted permission for any school to conduct in-person instruction, with the caveat that local officials and superintendents must first submit their plans to the State’s education and health departments for approval. New York also mandates contingencies for every mode of instruction – in-person, remote, or hybrid -- and insists that the school’s positivity rate must remain below five percent for in-person instruction to continue. By contrast, California is basing decisions on whether a school’s county appears on a list designed to track infection rates. If a school’s county remains off the list for two weeks, that school will be eligible to open for in-person learning provided the infection rate remains below five percent. Other urban school districts, including Washington, DC, will begin with remote instruction in the fall, with non-specific plans to eventually transition to a hybrid model later in the term. Meanwhile, Florida and Texas have actively encouraged schools to reopen for in-person learning.
Within this dynamic system, education publishers are uniquely positioned to meet the moment and invest in change. As an industry, publishers have spent decades shifting rich content and learning solutions to a variety of innovative formats that better enable students to learn and succeed from anywhere at any time. Always at the forefront of online education, publishers today offer a variety of digitally interactive content, assessment tools, and learning platforms, as well as customizable tools that help teachers connect with their students, monitor their progress and administer tests. And publishers continue to develop new eBooks, adaptive learning tools, apps, simulations, interactive labs, and other types of education software and instructional materials to drive personalized and self-directed learning.
Will change be immediate in K-12 education? No, of course not, and nor will it be uniform or static. But as publishers pivot—and help their partners and customers to pivot—here are a few issues that should be top of mind for the foreseeable future:
Teacher Training and Instruction: In the absence of a physical classroom, teachers are confronted with the challenge of providing intellectually challenging work in which students learn how to think critically by analyzing text, drawing conclusions, and performing complex math problems and task. This will require creativity and potentially a new skill set for many teachers, especially as they shift to new multimedia content, modalities, and platforms, made more challenging by a virtual classroom setting and varying levels of student ability. As conditions continue to shift and the demand for better virtual classrooms builds, schools will be tasked with identifying and securing both the appropriate content and the appropriate technology to ensure all students have a quality online learning experience.
Student Engagement: While interaction with high-quality curricular resources contributes to a student’s academic success, so too does a student’s level of interpersonal engagement with their teachers and peers. In a virtual setting, teachers must build and maintain rapport with students they may never see in person, making the normally routine monitoring of a student’s academic, social and emotional wellbeing vastly challenging. As teachers work to bridge this gap, they will need not only great content but a wide variety of creative tools and technologies to foster all types of connections including one-to-one, peer-to-peer, small groups and full class interactions. Equally important is finding ways to reach students with disabilities and special needs whose learning is somewhat dependent on hands-on activity and face-to-face instruction. Such interactions are a vital part of the learning process and critical to an individual’s academic success.
Equity and the Digital Divide: The inequity in learning that exists for those who do not have internet connectivity, a device, or both, has troubled the school community and policymakers for far too long. In a pre-COVID context, educators could find temporary fixes through library resources, shared or borrowed laptops and wireless connections offered by local businesses. There are current federal and state initiatives underway to expand broadband access in schools, libraries and at home; and to provide more WIFI hotspots and digital devices to the underserved communities. But in the interim, schools will need support from all parts of the education ecosystem if they are to reach students who simply aren’t connected to the Internet or are without devices.
Learning Loss and Assessment: The gap in learning that began last spring might be the most pressing issue for teachers, students and parents. It will be a challenging fall for teachers as they work to identify students who are behind and devise solutions to get them back on track. School districts will need to support more tutoring, more tailored content, and more tools, such as digital polling, hand-raising, chat rooms and chat boards. To educate a student, schools will not only need to spend more time on assessment, but also more time building individual student confidence so that grade-level competencies and other success stays within reach. And teachers will need better and more efficient diagnostic tools to address learning loss.
While the issues outlined above are challenging for all involved, they can be mitigated by the public-private partnerships that have served education so well for so long. Less clear is the impact that diminishing state revenues will have on learning objectives, driven by a slow economy that has put an enormous strain on school budgets. What we do know is that, depending on whether the annual budget was set before or after COVID, states may be forced to make up for the shortfall by funding cuts to education either now or in anticipation of shortages in future budget cycles, which could be a year or two from now. Moreover, while stimulus funding in some cases has been stabilizing, it does not address the expected multi-year shortfall predicted by experts. At any rate, funding is decreasing while the demand for health and safety equipment/services as well as investments to support remote learning is increasing. All of the above has potential longterm effects on a student’s academic, emotional and physical well-being.
We are at a moment when traditional teaching and learning practices may be out of reach or inapplicable, requiring more creative approaches to augment the remote learning experience. It is imperative that we improve, enhance or fix parts of the system that aren’t working but it is also a moment, rather an opportunity, to embrace new teaching skills and new learning technologies that may serve to reinvent K12 education in the near future. Publishers will pivot, and in doing so will help their partners in the education system do the same.
Kelly L. Denson is Vice President of Education Policy and Programs at the Association of American Publishers and a former teacher.