Ruth Bader Ginsburg’s Copyright Jurisprudence

59 Pages Posted: 15 Mar 2021

See all articles by Ryan G. Vacca

Ryan G. Vacca

University of New Hampshire School of Law

Ann Bartow

Franklin Pierce Center for IP at UNH Law

Date Written: March 14, 2021

Abstract

When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.

Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This article discusses one of the most interesting: copyright law. During her time as a jurist on the Supreme Court and D.C. Circuit, she authored sixteen opinions in copyright cases and joined her colleagues’ opinions in eleven others. But unlike her gender equality and social justice opinions, in which she predictably sided with rock-slinging Davids, Justice Ginsburg tended to favor Goliath content owners in copyright cases. This article offers possible explanations for why this was so, by holistically evaluating Justice Ginsburg’s copyright writings. It identifies several themes running through her copyright opinions: incrementalism, intergovernmental deference, a preference for alternative mechanisms for relief, and stoicism, and juxtaposes her copyright jurisprudence with her approaches to gender equality and reproductive rights.

Keywords: Ruth Bader Ginsburg, RBG, copyright, jurisprudence, incrementalism, institutional capacity, intergovernmental dialogue, alternative remedies, stoicism, gender equality

JEL Classification: K00, K10, K19, K29, K39, K49

Suggested Citation

Vacca, Ryan G. and Bartow, Ann, Ruth Bader Ginsburg’s Copyright Jurisprudence (March 14, 2021). 22 Nevada Law Journal ___ (forthcoming 2022), Available at SSRN: https://ssrn.com/abstract=3804436

Ryan G. Vacca (Contact Author)

University of New Hampshire School of Law ( email )

Two White Street
Concord, NH 03301
United States
603.513.5291 (Phone)

Ann Bartow

Franklin Pierce Center for IP at UNH Law ( email )

Two White Street
Concord, NH 03301
United States

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