Souter's Mark on IP

10 May 2009

United States Supreme Court Justice David Souter announced last week that he will be retiring from the Court at the end of next month. Justice Souter authored several important opinions in the field of IP, including Markman, Grokster, and Campbell.

Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) changed the face of patent litigation. Markman challenged the Court with the question of whether interpreting patent claims was a question of law or a question of fact. This is an extremely important question because in American court cases, questions of law are decided by the judge but questions of fact are decided by the jury. The Court in Markman held that the interpretation of patent claims was a question of law to be decided by the judge. This led to the development of mini-trials now generally referred to as Markman Hearings. During these hearings, the judge basically determines the meaning of the patent. Sometimes the judge's determinations may lead to a settlement of the case or the plaintiff dropping the case completely, because of how the judge has interpreted the claims of the patent at issue. The value and appropriateness of Markman hearings remain much debated issues. [Some views on Markman hearings here and here.]

MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), is the case that put an end to the popular post-Napster file sharing programs. Grokster, like Napster, was a program made for people to share files. However, in an attempt to avoid the same fate as Napster, Grokster allowed file sharing without owning or running any of its own servers. Grokster was strictly peer to peer. However, in Grokster, the Court held that one who distributes a device or program with the object of promoting copyright infringement may be held liable for the resulting infringement by third parties. Thus, Grokster could be held liable for the infringement of its users. Like Napster before it, Grokster became a set of blue prints for the development of the next stage of file sharing software, eventually leading to BitTorrent and the recently litigated Pirate Bay.

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) firmly established parody, whether commercial or not, as a fair use of copyrighted material. In this rather infamous case, publishing company Acuff-Rose claimed 2 Live Crew's rap song "Pretty Woman" infringed on their rights in the Roy Orbison hit "Oh, Pretty Woman." The Sixth Circuit had found that 2 Live Crew did commit copyright infringement because of the commercial nature of their song. The Supreme Court overturned this decision, saying that all of the fair use factors need to be considered, not just the commercial nature of the new work. Parody is considered as an aspect of free speech, something American jurisprudence holds in high regard. This case gets the best lawyering award because both Ippers and many scholars do not think Pretty Woman was actually a parody. But it was close enough that the legal argument won the day at the USSC.

Despite his simple lifestyle and his brief, rather uncontroversial, time on the Court, Souter has made a large impact on intellectual property law in the United States and the future of technology development in the country.


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