Brauneis on the Supreme Court's Deadlock on Fair Use, 1958 & 1974

Robert Brauneis, George Washington University Law School, has posted Parodies, Photocopies, Recusals, and Alternate Copyright Histories: The Two Deadlocked Supreme Court Fair Use Cases:

Before any of the Supreme Court’s trio of fair use decisions – Sony v. Universal City Studios, Harper & Row v. Nation, and Campbell v. Acuff-Rose – there were the 1958 case of CBS v. Loew’s and the 1974 case of Williams & Wilkins v. United States: two copyright infringement suits that had turned on fair use in the lower courts, and that the Supreme Court had decided to review and had heard argument in. In both of those cases, however, one of the Justices recused himself, and the others deadlocked 4-4, leading to summary affirmance of the lower court judgments. How would the Court have decided those cases without the recusals? How would the decisions have affected the development of copyright and fair use doctrine? And were the recusals justified?

The papers of a number of Justices, combined with other historical materials, provide surprisingly good answers to those questions. In CBS v. Loew’s, a case in which the Ninth Circuit had held that a Jack Benny parody of the movie Gaslight infringed copyright in that work, the Supreme Court voted to reverse. Justice Douglas started to draft an opinion for the Court, only to recuse himself to pursue a business opportunity with CBS that never materialized. In Williams & Wilkins, a case in which the Court of Claims had held the photocopying practices of two government libraries to fall within the scope of fair use, the Court would also most likely have reversed, with Justice Blackmun providing the fifth vote to decide that the practices were infringing. However, Blackmun recused himself because the Mayo Clinic, whose employment he had left fifteen years previously, took the position that the photocopying was fair use, and was one of thirteen parties signing on to one of many amicus briefs in the court below. Justice Douglas’s recusal, I argue, was unjustified, and Justice Blackmun’s dubious at best.

In a world in Douglas and Blackmun had not recused themselves and the Court had decided CBS and Williams & Wilkins, how could copyright law look different than it now does? I explore that question at three different moments in time. First, I argue that immediately after a CBS v. Loew’s decision in 1958, there might not have been a fair use doctrine separate from a general inquiry into copyright infringement. Second, I contend that just after a Williams & Wilkins decision in 1974, fair use doctrine would likely have focused entirely on what have become known as “productive” or “transformative” uses, while excluding “non-productive” uses and eschewing any distinction between commercial and noncommercial uses. Finally, I consider the present moment, and consider the possible continuing impact of hypothetical decisions in CBS and Williams & Wilkins. Ultimately, however, my goal is not to prove exactly how CBS or Williams & Wilkins would have come out, or would have diverted the path of fair use doctrine or copyright infringement analysis. Rather, I am interested in using the materials that are available about those cases, and the realization that the Supreme Court came very close to deciding them, to free up my imagination, and yours, about how copyright law and the fair use doctrine could be different than they are.