Tuesday, July 13, 2021
Ryan Vacca & Ann Bartow, Ruth Bader Ginsburg’s Copyright Jurisprudence, 22 Nevada L.J. (forthcoming 2022)
When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.
Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This article discusses one of the most interesting: copyright law. During her time as a jurist on the Supreme Court and D.C. Circuit, she authored sixteen opinions in copyright cases and joined her colleagues’ opinions in eleven others. But unlike her gender equality and social justice opinions, in which she predictably sided with rock-slinging Davids, Justice Ginsburg tended to favor Goliath content owners in copyright cases. This article offers possible explanations for why this was so, by holistically evaluating Justice Ginsburg’s copyright writings. It identifies several themes running through her copyright opinions: incrementalism, intergovernmental deference, a preference for alternative mechanisms for relief, and stoicism, and juxtaposes her copyright jurisprudence with her approaches to gender equality and reproductive rights.