Pamela Samuelson (University of California, Berkeley - School of Law) has posted The Solicitor General's Mixed Record of Success in Supreme Court Copyright Cases on SSRN. Here is the abstract:
The Office of the Solicitor General (OSG) has historically been very influential with the Supreme Court, especially as an amicus curiae in private litigant cases (75% win rate overall, and more than 90% in patent cases). This Article is the first to consider OSG’s record of success in the Court’s copyright cases. Over the past forty-five years (starting with the effective date of the Copyright Act of 1976), OSG has had a perfect record of success in the Court’s copyright procedure and constitutional challenge cases, but a more mixed record of success in cases calling for substantive interpretations of copyright law and in copyright remedies cases. In some of these cases, the Court agreed with OSG about which litigant should prevail, but not with OSG’s analysis of the issues, ultimately issuing much narrower decisions than OSG recommended. In others, the Court disagreed with OSG about which litigant should prevail, as well as with its analysis of the substantive law issues. OSG has typically argued, seemingly due to the influence of the U.S. Copyright Office, for higher protectionist positions in the substantive analysis cases than the Court adopted. The Court has generally taken a broader view of the potential implications of its rulings for the public and for affected industry sectors than OSG espoused, often heeding concerns expressed in lower protectionist amicus briefs. The Court has also relied more heavily than OSG on its past copyright decisions. To better serve the constitutional goals of copyright law, the Article suggests that OSG should limit its amicus filings in copyright cases to those in which the government has a direct and meaningful interest.
Recommended.
