Judge Roberts and Copyright

With President Bush's nomination of Judge Roberts to the Supreme Court, one might wonder how this will impact on copyright decisions. I don't mean the impossibility of reading tea leaves on things like Grokster. Justice O'Connor joined Justice Breyer's concurring opinion in Grokster, so in a future similar case that might be one less vote there. Chief Justice Rehnquist, for whom Judge Roberts clerked, joined in Justice Ginsburg's concurring opinion, so that might be one more vote in that column, but that would still only make 4 votes. On the other hand, if one aligns Judge Roberts with Justice Scalia and Thomas, that's also of no help, since neither of those two joined a Grokster concurring opinion. And of course, there is no reason to think being conservative or liberal has anything to do with the issue, given the political line-up in the concurring opinions. There is no reason to assume anything other than that Judge Roberts would approach these issues in a way no one can predict, so we shouldn't.

Given Judge Roberts' very short status as a judge and the fact that the DC Circuit hears few copyright cases, the record is scant. In fact, I found only one opinion, Universal City Studios LLP v. Peters, 402 F.3d 1238 (D.C. Cir. April 8, 2005)(Another decision, DSMC Inc. v. Convera Corp., 358 F.3d 670 (D.C. Cir. 2003) involved arbitration of copyright and trade secret claims).

The Universal Case was an agency appeal, a staple of the DC circuit diet. MGM and Universal couldn't establish they had complied with the Copyright Office's regulation (37 CFR 252.4) for filing a claim to entitlement to royalties for cable and satellite compulsory license fees. The Office rejected the claims, meaning no royalties. The studios sued under the APA and the Due Process Clause of the 5th Amendment. The district court found no merit and Judge Roberts, writing for the panel affirmed. Judge Roberts' opinion is thorough, mainstream, and well-written.

Jason Schultz of the EFF pointed out to me that Judge Roberts was on the RIAA v. Verizon DMCA panel, although he didn't write the opinion. Jason provided me with this link from Wired's account of the oral argument.

(Those who wish to read his opinion in the infamous single french fry case, in which a 12 year old girl was arrested, handcuffed, had her shoelaces removed, fingerprinted and held at a juvenile processing center for 3 hours, Hedgepeth v. WMATA, 386 F.3d 1148 (D.C. Cir. 2004), will find it here).