For a generation, copyright scholars have taken it as a given that copyright law is destined to be disrupted by technological change. The basic problem, they have explained, is that it is impossible for Congress to anticipate the ways that new technologies will affect the creation, distribution, adaptation, and consumption of creative work. While excusing Congress and the courts for copyright law's uncertainties, this view also leads to a kind of resignation. Unless we are to halt the march of technological progress, we must accept the unpredictability of copyright law as an inexorable fact of life. This Article complicates the conventional account by identifying an independent cause of copyright uncertainty, one that is rooted not in technological change but in the judicial process itself. Copyright law is vulnerable to disruption due to an unappreciated interaction between the certiorari- and merits-stage practices of the Supreme Court. For a century, the choice to hear copyright cases has rested in the Court's discretion, and it has typically used that discretion to avoid the field. Because intervention by the Court is infrequent and unpredictable, participants in the copyright system have no choice but to look to circuit law. Indeed, some of the most important precedents for copyright industries today are not precedents of the Supreme Court but of the circuit courts of appeals. But occasionally the Supreme Court decides to hear a copyright case. And when it does, the circuit law forming the bedrock of our copyright system suddenly becomes vulnerable. Although the Court has, at times, deferred to lower court decisions in other areas of law, it has not done so in any contemporary copyright case. Repeatedly, the Court decides copyright cases without deference to lower court decisions, even decade-old decisions that have been widely accepted by the relevant industry and engendered significant reliance interests. Identifying this mechanism reveals the prevailing technologyfocused account of copyright disruption to be incomplete. A surprisingly small share (less than fifteen percent) of recent Supreme Court copyright cases involve any post-enactment technological developments. But rather than discrediting the conventional view, this complication suggests that copyright uncertainty may be more pervasive than previously recognized. To the extent technological developments are raising new questions of copyright law, the Supreme Court-and hence, the judicial process-is not providing many final answers.
The Supreme Court's Fragile Copyright Law,
50 Fla. St. U. L. Rev.