RBG was a champion for creators, too
Our nation is mourning the death of Supreme Court Justice Ruth Bader Ginsburg and celebrating her legacy. Her life story is nothing short of heroic — overcoming discrimination to become one of only nine women in her Harvard Law School class of over 500, building a ground-breaking legal career in spite of pervasive sexism and prejudice, and rising to become one of the most influential Supreme Court justices of her era. It is not often that Supreme Court justices become lead characters in movies, Halloween costumes, “Saturday Night Live” characters, or the inspiration for hip-hop lyrics. Justice Ginsburg was more than an inspiration. She was an icon.
The eulogies for Justice Ginsburg and her championing of human rights have been moving and powerful, but another aspect of her judicial tenure also deserves attention. “Notorious RBG” was, in her quietly relentless way, the court’s most aggressive defender of copyright. It was “an interest she said she adopted from her daughter, Jane,” reported The Wall Street Journal, “herself an expert in intellectual property at Columbia Law School.”
Justice Ginsburg became a powerful champion for the important works of artists, musicians, writers, poets, software coders, and other members of the core copyright industries that employ nearly 5.7 million Americans. In Eldred v. Ashcroft, the Supreme Court’s landmark 2003 decision upholding the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act, she wrote that extending the term of copyright would “provide greater incentive for American and other authors to create and disseminate their work in the United States.” She understood that weakening the protection of copyright — and further exposing this innovative community to exploitation and theft — would leave our culture and our country worse off.
Justice Ginsburg also recognized that when creative works appear without permission somewhere on the internet, their creators should still be able to avail themselves of copyright protection no less than they would in any other case. In 2001, when many others had their judgment clouded by “internet exceptionalism,” she presciently decided in New York Times v. Tasini that an article in an online database deserves the same protections as an article in the physical world. “Media neutrality should protect the Authors’ rights,” too, she wrote.
When infringement did occur, she was committed to making sure that creators could recover from it. In Petrella v. Metro-Goldwyn-Mayer, Inc, she determined that creators were entitled to monetary relief for infringement even if the harm from it became actionable years after the fact. She also rejected a rule that would have forced copyright holders to challenge each and every infringement as a condition of bringing suit. And, just this year she joined with Justice Stephen Breyer — whose views on copyright did not always align with hers — in lamenting the course of case precedent on state sovereign immunity that has left creatives without a claim against state entities for copyright and other forms of IP infringement.
These are just a few of the key copyright cases where Justice Ginsburg had an impact on creative livelihoods. The Washington Post wrote of her appreciation for artists and performers, “She loved them, and the people who make art loved her back.” This dynamic was central to her life’s work, and her imprint on copyright law may be broader than any single justice before her.
Her passing comes only a few weeks before oral arguments in another major copyright case before the Supreme Court, Oracle v. Google. It is a case where Google — whose disrespect for copyright is legendary — has fought tooth and claw to argue that its copying of another company’s software code is fair use. At its core, this case is about the rights of tens of thousands of computer programmers and developers, who, like any individual artist, writer, director, or musician, deserve protection for their innovative and original works that enrich our lives.
It is a loss for our creative communities that Justice Ginsburg will not be here to take part in the court’s decision on what many have called “the copyright case of the century.” Her eloquent opinions would have influenced other important cases in progress as well, such as Skidmore v. Led Zeppelin.
Ensuring that copyright protections are there for all creators — whether they make the films we watch, the music we listen to, or the software that powers many parts of our modern lives — is part of her legacy. By working to preserve this legacy, by continuing the fight to ensure that America remains a nation where all creators can realize their visions, and be rewarded for them, our communities can pay the greatest tribute to this important aspect of Ruth Bader Ginsburg’s career.
Ruth Vitale is the CEO of CreativeFuture, a nonprofit coalition of over 550 companies and organizations and more than 270,000 individuals devoted to promoting the value of creativity in the digital age. She has held top posts at Paramount Classics, Fine Line Features, and New Line Cinema.
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