With the conclusion of Judge Amy Coney Barrett’s confirmation hearings before the Senate Judiciary Committee, at least one apolitical issue is clear: there was very little focus on intellectual property. Judge Barrett, nominated to fill the Supreme Court vacancy left after Justice Ruth Bader Ginsburg’s recent death, seems not to share – at least at this stage – the late Justice Ginsburg’s affinity for and interest in intellectual property. Examining Judge Barrett’s long academic, and shorter judicial, record leaves much unknown about her likely disposition towards intellectual property matters. However limited her record may be on that, it is highly likely she will be guided by her commitment to a textualism.
Not until late into the third day of the confirmation hearings did the issue of intellectual property arise when Senator Thom Tillis (R-NC), who chairs the Senate Judiciary Committee’s Subcommittee on Intellectual Property, asked Judge Barrett several questions – which went largely unanswered – regarding antitrust, copyright, and patent law. After he thanked Senator Chris Coons (D-DE) and Richard Blumenthal (D-CT) for being some “of the more active members of the [sub]committee”, Senator Tillis criticized the Supreme Court’s recent precedent for “muddl[ing] the waters”, without naming the specific cases, but likely referring to Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012); Alice Corp. Pty. Ltd. v. CLS Bank Int’l., 134 S. Ct. 2347 (2014); and progeny.
Judge Barrett confessed that she could not “think of what particular cases [Sen. Tillis] might be referring to”, but emphasized that she would “strive for clarity” in her written opinions, and endeavor to guide lower courts and create clear contours for those trying to “order their conduct in compliance with the law.” Further, hewing to her textualist approach, Judge Barrett responded that such issues – like reforming and evolving IP law – are matters “best addressed by the legislature, a democratically elected body, not policy made by courts.”
Judge Barrett’s relatively limited history of decisions similarly leaves observers with minimal insight into her approach to IP issues, aside from a clear textualist emphasis. For example, in Sullivan v. Flora, Inc., 936 F.3d 562 (7th Cir. 2019) (Scudder, J.), Judge Barrett joined a unanimous decision interpreting what constitutes a “work” where the allegedly infringing materials consist of multiple images which have been registered under a single copyright application, an issue on which the circuits are split. Sullivan involved an alleged violation of a license to use 33 individual illustrations where the definition of a “work” was critical because it helped determine statutory damages. Under the Copyright Act, 17 U.S.C. § 504(c)(1), a copyright holder may “recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work”. Separately, the statute provides “all the parts of a compilation or derivative work constitute one work.” In Sullivan, a jury found the defendant infringed each of the 33 illustrations, returning a statutory damages award of $3.6 million. On appeal, the panel vacated the judgment and remanded for further proceedings. The case is still pending in the United States District Court for the Western District of Wisconsin.
Similarly, in Vernon v. CBS Television Studios, Case No. 18-2795 (7th Cir. Apr. 12, 2019), Judge Barrett joined the panel’s decision affirming the dismissal of a plaintiff-writer’s copyright infringement case for failure to state a claim. There, the panel ruled that the allegedly common and copied features of the plaintiff’s work (television show scripts) were unprotectable elements known as scenes a faire – essentially, generic features which are standard to particular types of creative works (i.e., a cop-and-robber chase, or a meet-cute in a romantic comedy). Scenes a faire is sometimes translated as “scenes which must be done.” Interestingly, the scenes a faire doctrine plays a role in the behemoth Google LLC v. Oracle Am., Inc., No. 18-956, just heard by the Supreme Court and awaiting decision. While it is unlikely a Justice Barrett would join in any opinion in that case, the scenes a faire doctrine may feature as an interesting part of the determination of whether copyright protection extends to a software interface. Google is arguing that Oracle’s software interface (referred to as APIs) are not eligible for copyright protection, or if they are that any copying was not infringing, at least in part because the lines of code had to be written in a particular way to obtain the desired result such that they were not copyrightable under the merger (where functionality and expression are said to “merge”) and scenes a faire doctrine (that these elements of the code are so standard or common that they are ineligible for copyright protection). The application of the traditional scenes a faire doctrine to software is also a clear example of the dichotomy Senator Tillis pointed out, and to which Judge Barrett indicated she would defer to the legislature, and to any guiding statutory text.
In a more recent case, J.S.T. Corp. v. Foxconn Interconnect Tech. Ltd., Case No. 19-2465 (7th Cir. July 13, 2020) (Barrett, J.) Judge Barrett authored a decision for a unanimous panel affirming the district court’s dismissal of a misappropriation of trade secrets case for lack of personal jurisdiction. There, the defendants’ only contact with the forum state, Illinois, was the sale of parts containing allegedly stolen proprietary designs. Judge Barrett ruled that this did not satisfy minimum contacts to support specific personal jurisdiction for a federal misappropriation of trade secrets claim. Where all of the defendants’ alleged bad acts were conducted outside of the forum state, those acts did not support the court exercising personal jurisdiction.
Of course, it is never possible to perfectly predict a future justice’s likely rulings in any particular case or area of the law. However, it seems especially dangerous to try and do so for Judge Barrett, at least as far as intellectual property is concerned. Regardless of the political issues associated with her nomination, litigants and jurists (not to mention law students) of all stripes and persuasions would likely agree with Judge Barrett’s professed desire to write clear opinions to help guide lower courts and individuals to order their affairs, as she repeatedly mentioned in her responses to senators’ questions over the course of the week.