The Supreme Court eats its copyright vegetables

Listening to Tuesday’s argument in Fourth Estate Public Benefit Corp. v., 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.,  January 8, 2019) (summarized in the text)
Supreme Court Oral Argument Prediction for Fourth Estate Public Benefit Corp. v., 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.


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

Predicting Supreme Court votes based on oral argument metrics

Applying forecast techniques to patent cases

Court watchers and interested parties pay close attention to the ebb and flow of oral argument in individual cases. Usually the best way to understand oral argument is to read the briefs and listen to the argument, but there is also mounting evidence that a more quantitative approach is useful in predicting the votes of individual justices and, ultimately, case outcomes. A big data approach allows for analysis that is not possible in a case by case analysis: for instance, it is not feasible to listen to every case in order to discern what historical trends are emerging in judicial behavior since 1955.

The disagreement gap

In our forthcoming article, The New Oral Argument: Justices As Advocates, we show that the justices overwhelmingly tend to have more to say to the party they ultimately vote against. Sarah Shullman made this suggestion in 2004 based on a study of cases from the 2002 Term; John Roberts came to the same conclusion in a 2005 article before he was appointed to the Bench; and Johnson, et al, among others revisited the issue in 2009.

In The New Oral Argument we show that this disagreement gap has been a feature of Supreme Court oral argument since at least the 1960s but that the size of the gap ballooned in the mid-1990s and has been increasing ever since. We also have a number of other metrics, taking into account more granular data including word counts, interruptions, and the difference between questions and comments, all of which we show follow patterns that help predict case outcomes.

Reduction to practice

Our disagreement gap analysis in the figures below shows the difference between the number of times each justice spoke to counsel for petitioner and counsel for respondent. Because being spoken to more often is actually a very bad sign for the advocate, we then invert those numbers so that a positive score reflects a gap favoring the petitioner (dark navy bars) and negative scores favor the respondent (red bars). Those bars reflect not only speech episodes to each side, but the ratio of questions to comments, patterns of interruptions, and other factors. We also indicate uncertainty or a “weak signal” from the data where appropriate (gray bars). The actual votes of the justices in these cases are indicated on the right-hand side of the figure.

In preparation for this year’s Supreme Court IP Review at the Chicago Kent Law School, Professor Ed Lee asked us whether there was anything interesting to report from the oral argument data for last term’s patent cases. We thought it was a great opportunity to test out some predictive models we have been working on, by applying our metrics to last Term’s intellectual property cases, and seeing if the outcomes could have been predicted based on their oral arguments.

WesternGeco LLC v. ION Geophysical Corp

Prediction based on oral argument in WesternGeco v. ION Geo [CLICK TO ENLARGE]
In WesternGeco v. ION the Court held 7-2 that lost profits in overseas markets attributable to patent-infringing exports are recoverable in patent litigation. Our model correctly predicted that Justices Gorsuch and Breyer would vote in favor of the respondent and that Justices Kennedy, Sotomayor, Alito and Kagan would vote in favor of the petitioner. The WesternGeco analysis highlights how useful the model can be in predicting outcomes that don’t fall along traditional liberal-conservative fault-lines, such as the Breyer-Gorsuch coalition.

SAS Institute Inc. v. Iancu

Prediction based on oral argument in SAS Institute Inc. v. Iancu [CLICK TO ENLARGE]
In SAS Institute v. Iancu, the Court held 5-4 that when the Patent Trial and Appeal Board institutes inter partes review of a party’s challenges to the validity of an issued patent, it must make a decision on all of the patent claims contested by that party. The majority arrived at this conclusion by holding that that the word “any” meant “every” in the relevant statute. In SAS Institute, our model correctly predicted the votes of all of the justices except for the habitually silent Justice Thomas. Given the liberal-conservative divide evident in the eight speaking justices, we would have predicted that Justice Thomas would vote with the conservative majority in favor of the petitioner.

Oil States Energy Services, LLC v. Greene’s Energy Group

Prediction based on oral argument in Oil States v. Greene’s Energy [CLICK TO ENLARGE]
In Oil States, the Court rejected a constitutional challenge to the system of inter partes review introduced in the 2011 patent reform legislation, the America Invents Act. Oil States is the most intriguing of the three cases because so much rested on the outcome of the case and because, as seen below, our predictive model misread Justice Breyer’s eventual vote. Earlier this year, we were engaged as paid consultants and asked to predict the outcome of Oil States.

After reading the briefs, listening to the argument, and crunching the numbers, we predicted a 7-2 vote in favor of the respondent, with Justice Breyer concurring. Happily, this proved to be the exact outcome. Understanding the issues in the case and the substance of Justice Breyer’s comments and questions, we were confident that our model was misleading in this particular instance. However, the model was extremely useful in helping us to read the intentions of Justices Alito and Kennedy.

Patterns are not rules, and so even a very accurate metric will not accurately predict every judicial vote in every case. Hence in Oil States, we adjusted the empirical prediction in accord with what we heard of Justice Breyer’s tone. But by analyzing trends and patterns, we are able to go beyond impressionistic accounts in predicting case outcomes. The proof will be in the pudding, so check in here for our forecasts, and check back to see how they line up with the ultimate case outcomes.