Stormy Vetter, And Yet More Ways The Supreme Court Is Selling Us Out
Court reform cannot come soon enough, because unless and until it does we cannot count on the Supreme Court to dispense justice. For many reasons, but this week brought the focus to one in particular, one we've long known was a problem, because we've seen it be once before: the Court fails to take up review of a case because too many justices had recused themselves.
Like with the previous occasion, the case this time around was also a copyright case, Vetter v. Resnick, now captioned BMG Rights v. Vetter (that's B" as in Bertelsmann SE," which owns publishers like Penguin Random House, which has book deals with several Supreme Court justices) (can you tell where this post is going?), where the Fifth Circuit (surprise!) rendered a decision that some have credibly argued is built on a misreading of statutory text, a misapplication of the Supreme Court's opinion in Kirtsaeng v. John Wiley & Sons, and a fundamental disregard for how international copyright actually works."
It involved the termination right in copyright, which allows creators who had assigned their copyrights get them back decades later. However, its operation is not quite so simple, and there has been lots of litigation as creators try to recover their copyrights and the people currently profit them try not to let them go. This case raised the question of whether, when an author terminates a grant that conveyed their rights worldwide, does exercising the termination right under U.S. law return to the author all the copyright rights originally granted without regard to geography, or does it just recover the ones applicable in the United States?
Even if one thinks the Fifth Circuit was correct in finding that there was worldwide applicability, the decision is nevertheless a very big deal and so big that it warrants Supreme Court review in order to ensure that the court was indeed correct. And so there was a cert petition seeking the review. Which, as of this week, the Supreme Court refused to grant, for an appalling reason: there were not enough justices available to make the quorum to grant it!
From its orders list:
Because the Court lacks a quorum, 28 U. S. C. 1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. 2109, which provides that under these circumstances the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Justice Sotomayor, Justice Gorsuch, Justice Barrett, and Justice Jackson took no part in the consideration or decision of this petition.
With Justices Sotomayor, Gorsuch, Barrett, and Jackson declining to take part in the review of the petition, the Court was left unable to do that further review. Which raises several concerns. The first: we don't actually know why 44% of the Supreme Court was suddenly unavailable to do their job, as the Court seems to think such transparency is unnecessary. The second: we have a strong hunch as to the reason, which is that they are too busy making money writing books and recognized that they are conflicted because this decision would affect their future ability to profit from them.
Which is a huge problem. Because while it's great that the justices are recognizing when they won't be able to dispense neutral justice, IT IS THEIR JOB and it is really not good to employ, in our highest court of the land, people who cannot do what we have hired them to do because they are too busy doing something else.
In the copyright space it now looks like there is a whole category of cases, namely copyright cases, where the Court cannot adjudicate because too many of the justices are unable to participate.
The order doesn't explain the recusals. But as Music Business Worldwide reported, BMG's parent company, Bertelsmann, also owns Penguin Random House, which has published books by all four recusing justices: Jackson, Sotomayor, Barrett and Gorsuch. As Puck's Eriq Gardner tweeted: So basically any company that owns Penguin Random House can't get Supreme Court relief."
It makes one wonder if this problem would have arisen sooner, if cert had been pursued to review the fair use litigation against the Internet Archive, brought by publishers including Penguin. Penguin in particular seems to attract controversy in how it administers its copyright portfolio, which means there could be many copyright cases arising from how the Bertelsmann company behaves, which it appears there could never be Supreme Court review of because it has put so many justices under contract. In this case it actually hurt Bertelsmann, who wanted the review, but this incident illustrates a significant problem with justices being able to pursue enrichment outside of the job: it lets those with the resources to entice them to game American law.
Because the problem is of course bigger than just the immediate effect on the development of copyright law: there should not be any cases where the Court cannot weigh in where we need it to, and especially not because they are moonlighting doing something else other than the job we gave them lifetime appointment to do.
The Court reform we're waiting for will need to address this problem of split loyalties to prevent it from even arising again. And meanwhile the Court's incapacity here also adds fuel to the arguments in favor of Court expansion because if we're going to potentially lose justices to conflicts-and it is good that justices do step aside when they truly are conflicted-we'll need to make sure we still have some left after they do.