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October 31, 2005
Alito on Copyright
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Laura Quilter has the (still-developing) scoop on how a future Supreme Court Justice Samuel Alito might handle the tricky copyright, First Amendment, and "cyberlaw" policy issues that will impact the future of Internet communications. An intriguing snippet for those of us concerned about anti-consumer EULAs, box-wrap/click-wrap licensing, and the future of reverse-engineering:
Alito signed an unpublished copyright licensing opinion in Operating Systems Support v. Wang. I’ll have to read it very closely, but a quick glance, it looks like a business-to-business software licensing agreement. Looks mostly like a close contractual reading of the terms of the various licensing agreements, without much analysis of the Copyright Act. Ideoblog looked at Alito’s contract cases, and said that
Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs.
That could bode ill for any shrinkwrap cases that make it to the Supreme Court, including anti-reverse engineering clauses, anti-resale/First Sale clauses, or other consumer-unfriendly clauses.
Update:
William Patry weighs in: "Copyright lawyers should cheer the appointment of Judge Samuel Alito to the Supreme Court. In 2004, Judge Alito was the author of the en banc opinion in Southco, Inc. v. Kanebridge Corp., 390 F.3d 276. He was also the author of a panel opinion in the same case three years earlier, 258 F.3d 148. Both opinions are thoughtful looks at basic questions of originality. In addition to his extremely impressive legal skills, Judge Alito is a wonderful human being, the opposite of the 'Scalito' nick name bandied about."
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1. Seth Finkelstein on October 31, 2005 6:21 PM writes...
In my way of analyzing these situations (which departs in certain ways from formal legal framework), business vs. business cases are different from business vs. consumer cases. Arbitrating between two businesses over a minor point gives little hope about how a judge will rule on major issues of businesses restricting consumers.
Permalink to Comment2. Laura Quilter on October 31, 2005 7:09 PM writes...
Hey Seth, I agree completely w/r/t business-to-business licensing cases and consumer rights -- which is why I described the case as 'business-to-business' to begin with. (I edited my blog for clarity as to this point & linked back here, so thank you.) On the EULA front, it's Ideoblog's point about Alito's contract analysis that gives me pause -- and that's based on a lot of Ks that are not business-to-business and do involve consumer-oriented clauses, e.g., arbitration clauses. Check out the Ideoblog analysis if you haven't already. It doesn't make me very happy.
Permalink to Comment3. Seth Finkelstein on October 31, 2005 9:20 PM writes...
Laura - right, I was concurring overall with your analysis, and mostly meaning that with reference to Patry, any "cheer" would be from the greater-restrictions side, rather than the civil-liberties side.
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