ABSTRACT
Justice Ruth Bader Ginsburg heard and decided many copyright law cases during her tenure on the Supreme Court and DC Circuit benches, many of great importance. Surprisingly, given her progressive approach towards social justice issues, she did not predictably side with the underdog in copyright disputes. This chapter undertakes a holistic evaluation of Ginsburg’s copyright jurisprudence and identifies three themes. First, she was an incrementalist. She slowly advanced (and sometimes regressed) the law by writing narrow opinions, and by reinterpreting precedent. Second, Justice Ginsburg’s copyright jurisprudence was markedly deferential to other government institutions. She believed that evolving copyright law sometimes requires dialogues with other government institutions because courts have institutional capacity constraints, and need to engage in cooperative intergovernmental dialogues to be effective. Third, Justice Ginsburg preferred alternative avenues of redress or relief in high-impact copyright cases to minimize the social disruptions that might be caused by particular outcomes.
Vacca, Ryan G and Bartow, Ann, Copyright Law: Never Bet Against the House … or Senate (May 30, 2023).
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