By Danny Freedman
Forty years after the publication of Supreme Court Justice Stephen G. Breyer’s oft-cited article on copyright law, technology has pressed ahead in fast-forward but the lessons to be gleaned from the article have weathered the march of time, scholars said at a GW Law symposium last week.
The take-aways still are relevant to students and professors of law—much as they are for the author himself, who penned “The Uneasy Case for Copyright: A study of copyright in books, photocopies, and computer programs,” as a Harvard Law professor.
The day Justice Breyer handed a bloated 200-page manuscript to then-Harvard Law Dean Derek Bok was “one of the less-pleasant days of my life,” he said Thursday, during an intimate, free-wheeling and often funny keynote speech at the symposium celebrating the paper.
“Y’know,” he recalled Dean Bok, M.A. ’53, saying, “…when you write something, it’s sometimes worth going over it again.’”
For the young professor, who had been nervous to begin with—it was his first shot at getting published, and his tenure depended on it—the conversation was “sort of heart-stopping.”
The paper went through several revisions; each time he was careful to “pick out those things that I thought were the most interesting, and put the second-most in the footnotes,” he said with a smile, “and third-most in the waste basket.”
(Of the year-and-a-half spent researching, writing and revising: “I think it had a happy ending, the article, because I did get tenure,” he deadpanned.)
The process was a lesson, in part, about consideration for the precious time of others—not entirely unlike some of the copyright issues Justice Breyer wrestled with in the text of that December 1970 Harvard Law Review article itself.
In the paper, he weighs the arguments for and against copyright protection, including that of sixth-century King Diarmed, who proclaimed on the subject: “To every cow its calf.”
It’s a fair point, Justice Breyer said. But “many people … stopped right after that; that was their analysis of copyright,” failing to consider that barely any worker is given a “moral right to obtain every penny” of worth from their work. That kind of thinking, he said, has waned in the years since the article.
He also referenced, as in his article, a remark by 19th century politician and writer Thomas Babington Macaulay, who said that copyright was “a tax on readers for the purpose of giving a bounty to writers.”
That notion, said Justice Breyer, opens up the heart of the issue: “Put that way,you have to say: What should that bounty be? Why are we giving it? And how much? And what are the circumstances? And under what conditions? And when does it expire?”
“It was an effort to show that economics matters” in copyright law, said Justice Breyer, “... and you don’t need to go up and draw diagrams and various things in order to show that.” He hoped it also helped law professors see that although “we’re not Immanuel Kant, I’m not John Stuart Mill, but there is lots of useful work to be done.”
It’s Justice Breyer’s approach to the article, more than its long-outdated conclusions, that gives the paper its enduring value, said GW Law Prof. Robert Brauneis, who organized the symposium and is co-director of the Intellectual Property Law Program.
That approach, he said, is built on “a transparent and pragmatic theoretical framework, and an insistence on gathering empirical evidence and following it where it leads”—features that have been hallmarks of the justice’s work in the decades since, he said.
In introducing Justice Breyer, Dean Frederick M. Lawrence offered the title “public intellectual,” a phrase that he said should be reserved for thinkers who analyze issues in a deliberate and unique way; a way that—whether or not the audience is persuaded—shifts the course of the discussion.
“I would say that using the bully pulpit of the court not to walk away from those responsibilities but to embrace those responsibilities as a public intellectual may be the greatest gift that you actually have given us in the legal academy and us in the academy generally, and really in the country,” said Dean Lawrence.
After the speech, Justice Breyer opened the floor to questions, which led to discussions about his new book, “Making Our Democracy Work: A Judge’s View,” the reverence of the American people for the rule of law, and the work of the Supreme Court.
“This is an institution that has the power it does because Hamilton thought, correctly, that it will often—or sometimes, anyway—have to make decisions that are quite unpopular; very unpopular,” he said. “And it’s there to assure the least popular person in the United States that those constitutional rights will be identical to those of the most popular person.”
And the people on the bench there “are not nine angels,” he said. “They are nine human beings and they will sometimes get it wrong.”
Despite the great power of his position, Justice Breyer said it comes without much of the public visibility of other top-level government jobs. “Sometimes in a restaurant people will come up and seem to recognize me, and they ask a question—and it’s always the same question. They say: ‘Aren’t you Justice Souter?’”