Justice Ginsburg Was a Leader In Protecting Intellectual Property Rights

As the world continues to mourn the death of Justice Ruth Bader Ginsburg, much of the coverage has focused on her legacy in fighting for general equality and progressive political causes. Lost in the conversation appears to be her commitment to preserving and strengthening private property rights — the bedrock of free enterprise and individual liberty— and intellectual property rights in particular. 

 Ginsburg understood that innovation is what drives the free-market economy. In her nearly three decades on the bench, she adamantly defended their rights — working tirelessly to ensure that her rulings closed loopholes that left their property, ideas, and creations vulnerable.

In Eldred v. Ashcroft, RBG shot down the special interests that wanted to short-circuit the life of copyrights for their own financial gain. Her separation of powers-minded opinion made it clear that the Founding Fathers wanted Congress and only Congress to set the terms of its length. In one fell swoop, she protected the 1998 Sonny Bono Copyright Term Extension Act from becoming effectively invalidated on the whims of large corporations.

While Eldred v. Ashcroft was unquestionably Ginsburg’s most historic opinion for protecting private property rights, it was far from the only one. In New York Times Company, Inc. v. Tasini, Ginsburg set a precedent that prevented large companies from reprinting freelance authors’ work without permission. In Petrella v. MGM, she ensured that creators would always be able to file copyright infringement claims within the statutory limitations period, irrespective of how much time has elapsed. The list goes on and on. 

Ginsburg’s legacy in the IP space is so pronounced that ChIPs, a well-respected nonprofit that advances and connects women in technology, law, and policy, inducted her into their Hall of Fame in 2015. The late Justice Antonin Scalia underscored just how influential and respected her thoughts and views on this subject are at the event. As tribute video to her played on the screen, he admitted that, “My judgment is often guided considerably by Ruth” on IP-related legal matters. 

Given that Ginsburg’s death came within days of the Supreme Court’s hearing of oral arguments in Google vs. Oracle, which many legal experts call the copyright case of the century, it’s not unreasonable to believe that the bench’s loss of RBG has come at the worst possible time.

In short, Google admittedly took 11,500 lines of coding from the programming language Java to create Android. The company argues that the coding it took isn’t copyrightable, or if it is, that it should fall within the fair use doctrine — an exemption to IP typically reserved for limited use, like parody and educational purposes. Both of Google’s arguments are legally bankrupt and can potentially gut IP rights as we know them today in the digital age. That’s why a number of sectors and interest groups outside of the software industry — from the Obama and Trump DOJs to the music industry to news publishers — have filed briefs against Google. They know that if it wins this legal fight, the ugly anti-IP precedent that it would set would cripple innovation and private property rights throughout the economy.

If RBG was still with us, we know where she would have stood. She would have argued that Congress made these IP protections clear, and that “fair use” was never intended to be used as a loophole for commercial purposes like corporate behemoths like Google are suggesting. But without her presence and influence, a split 4-4 decision is not out of the question, and individual liberty is all the more vulnerable.

Reasonable people can agree to disagree on Ginsburg’s general politics and views, but everyone — including the center-right — should respect her commitment to protecting private property and innovation. While her legacy will carry on in many ways, her influence on IP law will be one of her more lasting. Her clear and persuasive writings and thinking on this subject will not be lost on her colleagues — nor will they on the justices that come after them. At least in this manner, the free-market economy has been made all the better by her time on the court, and for that, we should all be grateful.