The legal world was shaken by the death of Ruth Bader Ginsburg in September, and the extraordinary speed with which President Trump and Senate Majority Leader Mitch McConnell intend to replace her. The new nominee, Amy Coney Barrett, doesn’t have a clear track record on copyright or technology policy, but Justice Ginsburg certainly did. RBG was a reliable vote for copyright holders, and often wrote for the majority in big copyright cases where rightsholders prevailed, including the famous term extension case, Eldred v. Ashcroft. Ginsburg’s absence from the Court may give an advantage to Google (or remove an advantage for Oracle) in the Court’s consideration of the Oracle v. Google case. Oral arguments in that case are scheduled for October 7. (Like all of the arguments in the COVID era, they will take place by teleconference and audio will be broadcast to the public by various media outlets.) SPN filed an amicus brief in the case, urging the court to avoid disturbing the stable body of fair use law that has become essential to research, teaching, and preservation.

In mid-September the Copyright Office published the first round of comments in its study of infringement by state institutions. Senator Thom Tillis (R-NC) requested this report after the Supreme Court’s decision in Allen v. Cooper, another case where SPN joined an amicus brief, this time on the question of whether states (and state institutions) are immune from certain remedies in copyright suits. The Court’s opinion said that while states are currently immune, if evidence of extensive, intentional infringement were found, then Congress could abrogate immunity. The Copyright Office’s study is meant to determine whether there is evidence of state infringement sufficient to support congressional action. Comments in the first round were underwhelming, and did not seem to meet the threshold the Court announced in Cooper.

Senator Lindsay Graham introduced a bill in the Senate in late September that included provisions known as the CASE Act, a proposal that would create a new quasi-court housed in the Copyright Office and enable rightsholders to pursue infringement claims in a streamlined process designed to make it easier for plaintiffs to bring such claims. SPN joined a coalition letter addressed to the Senate Judiciary Committee cautioning that the CASE Act creates unnecessary new risk for libraries, technology companies, and creators who could be harassed by copyright plaintiffs with dubious claims. The quasi-court the bill creates also has serious constitutional deficiencies. The bill is scheduled for markup in the Senate Judiciary Committee on October 1.

The DMCA rulemaking marches on. A new team of students at the Harvard Cyberlaw Clinic has commenced work on SPN’s argument for an expanded exemption, with the goal of enabling remote access to preserved software. If you have experiences to share—especially stories that show how lawful remote access to software could be valuable for research—please fill out this form ASAP. Clinic student attorneys will use information in the form to help develop evidence for the rulemaking.

Preferred citation:

Butler, Brandon. (2020, June 29). You're Invited! SPN Law & Policy Chat on the DMCA Remote Access Limitation. Software Preservation Network.