Linda Greenhouse recently published a very well-received book, "Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey." There is no mention of the Sony case in it, or copyright for that matter. But Sony is emblematic of one aspect (and maybe more) of Justice Blackmun's personality. As Ms. Greenhouse put it on page 121: "[I]t was typical of Blackmun to hold fast to territory he had staked out and to become deeply invested in its defense." This was certainly true in Sony, where Blackmun was assigned to write the majority opinion affirming, but he ended up having to convert his opinion into a dissent. He was outmaneuvered by Justice Stevens and was his own worst enemy in losing a fragile, but sustainable 6-3 majority.
Justice Blackmun's first mistake was in the cert. vote. Those voting to grant certiorari were Blackmun, Burger, O'Connor, and Stevens, the bare four needed. Had Justice Blackmun voted against cert., it would have been denied, and the Ninth Circuit opinion affirmed as he wanted. (Congress then would have stepped in and dealt with the problem).
Things didn't improve from there. Justice Stevens began his politicking to change the conference vote (which occurred on January 21, 1982) in a January 24th letter to Justice Blackmun (other than personal missives, correspondence is circulated to all the Justices regardless of the addressee). One sentence in particular should be highlighted, and it is one that should give all Supreme Court advocates (and their clients) pause: "Because the point that most strongly supports a reversal was not adequately developed during the argument, and because I expect to emphasize it in dissent, it occurs to me that it may be helpful to you in the preparation of your opinion -- and conceivably might persuade one of you adherents to reconsider the matter before positions become absolutely firm - for me to put the basic outline of my argument on paper."
From there on out, as adamantly as Justice Blackmun "held fast to territory," Justice Stevens skillfully wooed over a majority by being flexible. For example, in a February 3, 1983 letter to Justice Blackmun, Justice Powell wrote that even though he had voted with Blackmun at the conference, Stevens' single copy fair use argument "was new to me ... and I must say that it makes the question more difficult for me."
Things were quiet for almost 6 months, until the middle of June 1983 when the first draft opinions were circulated. On June 16, one Justice wrote to Blackmun expressing concern about his draft's rejection of the District Court's view that Sony had suffered no harm and about his criticism of the District Court for requiring Sony to prove it had suffered actual harm. This Justice was willing to affirm the finding of no fair use, but wanted the District Court's findings on harm upheld as not clearly erroneous and asked Blackmun to modify his opinion along those lines. Blackmun quickly responded by offering to "make clear that the plaintiff's burden of production is a substantial one, and that unsubstantiated speculation is not enough." A remand on harm was thrown out as a possibility.
Justice White then sought common ground with a middle position that Justice Brennan was pursuing, and Justice Stevens quickly leapt on the opportunity to try and pull them into his camp. The Justice who had written to Blackmun about harm responded to him that his efforts to address the concerns expressed were appreciated, but that a remand didn't seem fruitful, although the possibility wasn't ruled out. Application of the staple article of commerce doctrine was then offered as a way out by this Justice. Changes were then made in a third Blackmun draft, but the issue of harm and burden of proof returned, and the same Justice who had raised that issue wrote again to Blackmun (noting by the way, clearly apropos Grokster, that there may be liability under either inducement or material contribution theories), and emphasizing the "capable" of substantial non-infringing use standard for the staple article of commerce doctrine. If changes all those lines were made, this Justice would stay with Blackmun, and his 6-3 majority would hold. Brennan sent a note to Blackmun encouraging him to make the changes.
Blackmun went back to the drawing board, but in a June 21, 1983 letter expressed a belief that the burden of persuasion on harm should be on the prospective user and expressing a reluctance to adopt the patent law staple article of commerce doctrine "lock, stock, and barrel" into copyright law. This didn't bode well for keeping skittish Justices with him, and Blackmun indeed quickly lost Justice Brennan. On June 28, he lost the final Justice in his majority with this fateful note to that Justice, quoted in full:
"I have endeavored over the past several days to accommodate your many concerns. My letter of June 23 to you represents the limit of what I am willing to do. Five votes are not that important to me when I feel that proper legal principles are involved. It therefore looks as though you and I are in substantial disagreement. The case will have to go its own way by a different route from the one I proposed. "
And so it did. There was a reargument, but it was for show only because given the vote switch there was no time to get an opinion out before the term ended in two weeks . Blackmun did hold fast to the territory he had staked out, but the result was a majority opinion by Justice Stevens that was far, far worse than the accommodations he refused to make. But was Justice Blackmun "wrong" to stand on his principles? That question is the subject of Thursday's blog.