Author: Matthew Sag

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The Supreme Court eats its copyright vegetables

Listening to Tuesday’s argument in Fourth Estate Public Benefit Corp. v. Wall-Street.com, it was striking that most of the justices would rather have been somewhere else, or at least deciding some other case. Maybe a trademark a case (see below)? Ironically, the justice with the most interest in the rights of copyright owners, Justice Ginsburg, was absent from oral argument recovering from surgery. But sometimes, even Supreme Court justices need to eat their vegetables.

Fourth Estate is exactly the kind of case that the Court should take. True enough, the policy issues are not earth shattering, the statutory interpretation issues are a little dull, and the controversy is so copyright-specific that it has no real implications for other areas of law. However, it is ridiculous in a national copyright system that the Fifth and Ninth Circuits allow copyright claimants to file a lawsuit based merely on filing an application for registration, whereas the other circuits require an actual registration or a rejection thereof (i.e., a decision on whether the work is copyrightable). This is a significant difference because the process takes several months on average.

Text likely to win over policy

Oral argument saw Petitioner’s flimsy statutory interpretation and more sympathetic policy position pitted against Respondent’s strong textual argument and less compelling policy stance (discussed in more detail below). If the justices were voting on their policy views alone, this case would probably be 9:0 or 8:1 in favor of Petitioner, but Respondent will be hoping that the law still matters. The tension between law and policy resulted in mostly even handed questioning at oral argument; as a consequence any predictions based on transcript metrics are quite speculative.

Supreme Court Oral Argument Prediction for Fourth Estate Public Benefit Corp. v. Wall-Street.com, January 8, 2019) (summarized in the text)
Supreme Court Oral Argument Prediction for Fourth Estate Public Benefit Corp. v. Wall-Street.com, January 8, 2019)

As the figure above shows, we predict Justices Kagan and Sotomayor, as well as the Chief Justice, to vote with Respondent. Justices Thomas and Alito (both silent during oral argument) will probably join them, as will Justice Breyer. A three-justice minority would not be surprising (based on the argument and Ginsburg’s history of favoring copyright owner interests), but the outcome is more likely to be 9:0 for Respondent (perhaps 8:1 with Ginsburg dissenting).

Ultimately, we predict that in this case at least, a straightforward reading of statute will carry the day.

How clear is the textual argument?

The issue in Fourth Estate is the correct reading of Section 411(a) of the Copyright Act, entitled “Registration and civil infringement actions.”

In simple terms, the most natural reading of the section is that it bars a copyright owner from instituting an infringement action until the Register of Copyrights (i.e., the Copyright Office) has either approved or refused registration. The relevant text of the section consists of three sentences. The first sentence reads:

… no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

The second sentence provides that if “the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused” the applicant may then institute its civil action. The third sentence allows the Register of Copyrights to join in that litigation and defend its refusal.

Petitioner argued heroically that “registration … has been made” means simply that the copyright claimant has submitted an application in proper form to the Copyright Office. This is hard to square with the second sentence that talks about a registration having been refused. Basically, Petitioner wants “registration … has been made” to mean the exact same thing as the following 18 words from the second sentence: “the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form.” This requires the Court to treat the same word, registration, as meaning vastly different things from one sentence to the next; it also asks it to accept that vastly different expressions within the same section mean the same thing. This is both counter-intuitive and anti-canon.

The policy question is not clear-cut

The policy question in Fourth Estate is more finely balanced. Petitioner’s best argument was that being forced to wait several months for a registration to either be granted or denied puts the value of their copyrights at risk and denies them the chance to take swift injunctive action. This clearly scored some points with a few of the justices, particularly Justice Kavanaugh, who demanded a drawn out explanation.

However, Respondent and the Deputy Solicitor General did a good job explaining why such dramatic unfairness was unlikely in view of the availability of preregistration and expedited review (special handling). They also explained how registration as a precondition to litigation plays an important role in encouraging timely registration with the Copyright Office and deposit with the Library of Congress.

Copyright and trademark are not the same

For intellectual property lawyers who are bemused, enraged, or amused by the inability of non-specialists to understand the difference between copyright, trademark, and patent (it is like confusing Star Wars with Star Trek, or Lost In Space), the oral argument provided a couple of triggering exchanges:

John G. Roberts, Jr.
Well, that’s enough assuming that the registrar has registered the mark.
Aaron M. Panner
Again, the registrar does not have to register the mark.
The — the — not the mark, the copyright. …

John G. Roberts, Jr.
  So you could go back, the registrar hasn’t even registered the mark, and you can go into court and say, hey, I get the benefits of having registered my mark?
Aaron M. Panner
  The copyright claim, yes, Your Honor.

Prediction

Petitioner: Sotomayor, Kagan, Roberts, Breyer, Thomas, Alito, Gorsuch, Kavanaugh, Ginsburg
Respondent: none
Most likely to switch: Ginsburg, Kavanaugh, Gorsuch

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Zombies in the graveyard! Knick v. Township of Scott rises from the dead

Reargument ordered in Knick v. Township of Scott

I wrote a post last Wednesday (on Halloween) all about the  spooky metaphysics of deciding when a graveyard taking comes into existence and predicting a 4:4 split in Knick v. Township of Scott. The post was scheduled to go live at our usual time, Monday morning at 9am. However, on Friday the Court restored Knick to the calendar for reargument and directed the parties to file additional briefing. This order basically confirms our prediction that the case was a 4:4 split, although it is possible that some of the justices were genuinely undecided and thought additional argument and briefing could clarify matters.

The reargument order calls for briefing on the Petitioner’s argument in footnote 14 of their brief that there is a key distinction between actions of the responsible government entity at the time of the taking and a compensation order (or denial thereof) by a state court under an inverse condemnation action. Petitioner argues that her takings claim is ripe as soon as the Township required she dedicate a public easement without offering compensation.

I strikes me that the call for 10 additional pages of briefing is just papering over the current 4:4 split that presumably Justice Kavanaugh will resolve when the case is reargued.

The original post follows:

Just in time for Halloween

In Knick v. Township of Scott, the Supreme Court waded into the somewhat metaphysical question of when exactly a takings claim against a state comes into being and the important practical question of where such cases can and should be litigated. This case was argued on October 3rd, but we thought it was perfect for a Halloween themed post.

The Williamson County Catch-22

As the Knick case itself illustrates, plaintiffs who would prefer to take their takings cases to federal court can easily fall into in a Catch-22 situation. Petitioner Rose Mary Knick argues that a local cemetery ordinance compelling her to allow the public daytime access to a grave site on her property amounts to a Fifth Amendment taking unless compensation is forthcoming. The Catch-22 arises because under the 1985 precedent of Williamson County Regional Planning Commission v. Hamilton Bank, Knick cannot pursue her federal Section 1983 claim until she has gone through the Pennsylvania procedure for seeking just compensation and been denied. However, because courts since Williamson County have applied issue preclusion to prevent unsuccessful state plaintiffs re-litigating the same question in federal court, once she loses in a Pennsylvania state court, she will no longer have access to federal court.

Ghost in the machine?

Our predictive models suggest that Chief Justice Roberts (75%), Justice Gorsuch (94%) and Justice Alito (67%) are solidly in the petitioner’s camp.

Knick v. Township of Scott Prediction Based on Supreme Court Oral Argument

It seemed clear at oral argument that the Chief could see the merits of both sides and was concerned about  “the letters that we’re going to get from district court judges around the country who are not going to be very happy learning that they now have to adjudicate state inverse condemnation actions, which can be fairly elaborate.”

The model is understated in the case of Alito. True, Alito engaged with both sides of the argument, but his exchanges with Petitioner were almost entirely in the form of “That’s a good argument, but wouldn’t it be even better if you said it like this?” For example, about 10 minutes into the argument, Alito cut off Justice Kagan to say the following:

Samuel A. Alito, Jr.:

Let me see if I understand your claim, because a little — some of the questions and the discussion up to this point is a bit confusing to me. I thought your claim was that there is a violation of the takings clause and you can, therefore, bring a suit under 1983 when the state does something that constitutes a taking but at the same time says we’re not paying you anything for this. Now it’s not a question of when they would have to pay once they’ve admitted that there’s a taking, but when they do something that constitutes a taking, and they say, no, this isn’t a taking at all, and, therefore, you’re getting zero, which I understand to be your claim here, then you can go directly to federal court and bring an action under 1983. And to require you to go to state court before you do that is essentially to require you to exhaust state remedies before you can bring a 1983 claim, which is never required under 1983.

I thought that that was your argument.

J. David Breemer for the Petitioner could only agree.

Our predictive model counts only two clear votes for the Respondent, Justice Sotomayor (85%) and Justice Kagan (64%). However, even though our model suggests Justices Ginsburg and Breyer are leaning slightly in favor of the Petitioner, a vote for the Respondent seems just as likely. Based on his comments at oral argument, Breyer seems likely to vote for the Respondent and will leave Williamson County intact, but he will soften the effect of issue preclusion that creates the Catch-22.

The other federalism

Conservative justices sometimes care deeply about federalism and state sovereignty, but not so much when it comes to the authority of state courts to decide issues of state law. One of the striking things about the oral argument in Knick v. Township of Scott was that only Justice Sotomayor addressed the Petitioner’s most likely motivation for trying to keep her case in federal court.

Knick denies that there is a grave site located on her property; but she argues that even if there is, she loses an important property right if the state can compel her to grant public access during daylight hours. Assuming that the grave site exists (why take the case to the Supreme Court if it doesn’t?), one of the key questions on the merits of this takings claim will be to what extent Pennsylvania property law had always allowed for limited public access in a case like this. Sotomayor raised the question of whether the restriction was inherent in the property prior to the ordinance, describing it as the “whole issue.” She may have also been thinking that the real point of framing a case like this as a Section 1983 action is not to just to vindicate a federal constitutional right, it is to make the federal courts the final arbiters of Pennsylvania state property law.

The looming specter of a rehearing

By unwritten tradition, justices do not vote in cases for which they were not present at oral argument, and so Justice Kavanaugh should not break the 4:4 tie we predict. However, there is precedent for cases to be re-argued, particularly when otherwise the case is likely to split 4:4. But other cases in the past have simply been handed down with an even split by the original makeup of the Court. If Knick is reargued, and Kavanaugh has the deciding vote, judging by the apparent ideological split of the case in the first hearing, and the similarity between Kavanaugh’s and the other conservatives’ behavior at oral argument in the few cases he has heard so far, that could turn the outcome into a 5:4 decision for Petitioner Knick.

Knick v. Township of Scott prediction: 4:4

For Petitioner Knick: Gorsuch, Roberts, Alito, Thomas

For Respondent Township of Scott: Sotomayor, Kagan, Ginsburg, Breyer

Most likely to switch: Breyer and Roberts

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Advocate Interruptions and the Effect of Experience

Advocate interruptions in theory and reality

“Never interrupt a Justice who is addressing you . . . If you are speaking and a Justice interrupts you, cease talking immediately and listen.”

So mandates the Supreme Court’s guide to counsel appearing before the Supreme Court. And yet, in examining all transcripts of oral argument before the Court during the 20 years from Terms 1998 to 2017, there were 48,461 interruptions of the justices by the advocates.

We analyzed 1437 transcripts of oral argument and found that in any given case, on average each advocate interrupted a justice over 13 times.

Our method of analysis requires some unpacking. First, we should be clear about what we mean by an interruption. Oral argument is a conversation between the justices and advocates; Supreme Court guidance notwithstanding, some degree of interruption is a natural part of any conversation. Following the methodology used by Jacobi and Rozema in their study of the impact of justice-to-justice interruptions on case outcomes, we draw a distinction between true interruptions and mere crosstalk, i.e., the brief overlaps in dialog when two people go to speak at the same time and one instantly yields. Specifically our definition of an interruption excludes any speech event where either the interrupter or the interruptee spoke for less than one second. Using this threshold, Jacobi and Rozema found that “substantive” interruptions (unlike brief conversational overlaps) were a good predictor of eventual disagreement between the justice pair involved, even controlling for ideology.

Second, we should be clear on what we mean by an advocate in any given case. The 1437 cases we analyzed featured 1595 different advocates and 3690 advocate appearances. Even though the majority of advocates were single-shot players, i.e., they appeared only once in that 20 year period (1259 of 1595), the majority of appearances were made by advocates who appeared more than once (2431 of 3690). When we say “in any given case, on average each advocate interrupted a justice over 13 times” we looking at the average of 3690 advocate appearances without accounting for repeat players.

Differences between advocates

We are also interested in the extent to which the advocates get interrupted by the justices. Of course, being interrupted by the justices is part of the job at oral argument, but some advocates seem to receive greater deference than others, are allowed to speak for longer periods of time, and are peppered with fewer judicial interventions. Our analysis of the last 20 years of Supreme Court oral argument shows that in any given case, each advocate was interrupted by a justice over 15 times on average.

In a working paper, we are examining what determines advocate success; here, we look at whether advocate experience is associated not only with tolerance of breaking the non-interruption rule, but also with greater deference in terms of fewer interruptions by the justices.

We might expect that a single-shot lawyer who nurtures a case all the way from trial to their big day at the Supreme Court will behave differently to the Paul Clements and Michael Dreebens—experienced advocates who have argued dozens of cases before Court. To test the difference between experienced and inexperienced advocates, we calculated the number of times each advocate appeared in our 20 year period.

As we have argued previously, a good way to examine the nature of the interactions between the participants at oral argument is to compare the extent of an individual’s tendency to interrupt and be interrupted. The figure below displays those two patterns for each advocate appearance in our 1437 cases in the last 20 years. The dashed 45° line represents parity for an individual interrupting as often as they are interrupted, whether that was a little or a lot.

The figure is divided into four equal quadrants according to the appearing advocate’s total number of appearances in the 1998-2017 Terms, allowing us to see if the pattern of interruption varies with experience. The scatter plot shows all 3690 advocate appearances rather than reflecting the averages for our 1595 individual advocates. The advocates range in experience from 1 to 89 appearances, with a mean of 16.7 and a median of 5.

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Advocate Interruptions in Four Quadrants

What the figure shows is that the solid red circles consistently significantly outweigh the hollow black circles—that is, advocates are interrupted more than they interrupt the justices, regardless of experience. For all four quadrants of advocate experience, there is considerable clustering to the left, indicating that even advocates who barely interrupt are still interrupted quite frequently. Thus, politeness does not guarantee more of a chance to speak uninterrupted. But that is not surprising: justices are permitted to interrupt. If the advocates followed the rules and never interrupted, we would only observe points above and to the left of the line. Instead, we see significant interrupting behavior by the advocates at all levels of experience.

In terms of advocates receiving deference, the four quartiles all appear to have a similar distribution pattern; but by calculating the means for each quartile, we see that the rate of interruptions by the justices does go down in the third and fourth quartiles. In the first quartile, with an average of 1 appearance, advocates were interrupted on average 16 times and themselves interrupted an average of 14 times. The numbers for the second quartile, with an average of 2 appearances, were similar: 16.5 and 14, respectively. But in the third and fourth quartiles, with an average of 12 and 51 appearances, respectively, the number of interruptions dropped to 14.5 and 14, respectively, and the number of interruptions dropped to 12 and 12.5, respectively. The standard deviations are quite high, so we must be careful making generalizations, but this suggests that experience results in fewer interruptions, in both directions, by and of the justices.

Elite Advocates

Looking just at the most experienced advocates, we see there is considerable variation in behavior. The figure below shows the rate of being interrupted and interrupting for the most experienced advocates—those who have appeared before the Court at least 15 times in the last 20 years. The first figure is ordered by the number of appearances, noted in parentheses; the second figure is ordered by the average number of times the advocate interrupted, again, noted in parentheses.

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Elite Advocates Interruptions by Appearances

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Elite Advocates Interruptions by Interruptions Committed

Interruptions by the justices are coded red and interruptions by the advocates are coded blue. The lack of symmetry for each advocate confirms that the justices interrupt consistently more often than the advocates do, but the correlation between interrupting and being interrupted is clear: low interrupters such as Ann O’Connell are interrupted less, whereas common interrupters such as Edwin Kneedler are interrupted frequently. Which way the causation runs, and whether those patterns can be explained by factors such as case salience, are questions that require further research.

By Matthew Sag, with input from Tonja Jacobi