I am pleased to present the first issue of Volume 71. Many of these articles were stewarded by my predecessor, Fred Yen, to whom we are all grateful for his service as Editor-in-Chief. We are also pleased to begin to add additional articles. In many ways, this issue is an inspection of structural elements within copyright: judicial method in copyright, the role of the solicitor general in copyright cases, and the boundaries of copyright when it comes to nonprotectable elements.

We begin with Part I and the 2023 Donald C. Brace Memorial Lecture. The first Brace lecture was given in 1970 by Melville B. Nimmer, “Copyright versus the First Amendment.” (For more on previous presenters over the last 50 years, see https://csusa.site-ym.com/page/Brace) The series is named after Donald C. Brace, founder of Harcourt, Brace and Co. in 1919. In 1950, he was awarded the Columbia University Medal of Excellence for his work in publishing. The series began with a gift from his daughter, Mrs. Donna Brace Ogilvie. 2023 marked the 53th year of the lecture series. For 2023, Shyamkrishma Balganesh, Sol Golman Professor of Law, Columbia Law School delivered “The Judicial Method in Copyright,” which examines the role of the federal judiciary as part of the U.S. copyright system. Balganesh argues that for too long the role of the judiciary has been neglected in copyright policy and reform, and that the courts play a role in both substantive and procedural rules. He suggest in the essay a “judicial method” that is employed in judicial decision making when it comes to copyright cases, as defined by four steps: self understanding of the judicial role; appropriate exercise of judgment from the applicable sources; assessment of the system-wide consequences of individual decisions; and a translation into principled reasoning.

We then turn to Part II Articles. We start with Pamela Samuleson’s “The Solicitor General’s Mixed Record of Success in the Supreme Court’s Copyright Cases.” This study is the first of its kind to review the role and impact of the Solicitor General in copyright cases. Where the Solicitor General (OSG) seems to have had significant influence in patent cases, the same is not true for copyright. Samuelson reviews all thirty-one copyright cases before the U.S. Supreme Court since 1984. This article analyzes the success and divergent opinions of the solicitor general and the courts, particularly with substantive copyright cases. She notes that only the recent Andy Warhol Foundation for the Visual Art, Inc. v. Goldsmith do you find the OSG’s argument to be highly persuasive. She ends with suggestions on how the OSG might better improve their record in future copyright cases in front of the Supreme Court.

Related to Samuelson’s investigation of the OSG is Peter Karol’s piece, “What’s the Use? The Structural Flaw Undermining Warhol v. Goldsmith,” that looks at the Andy Warhol case, and builds upon an early piece by Pamela Samuelson on the role of the OSG. Karol believes the Warhol decision “suffers from a foundational error that jeopardizes its value as precedent.” In short, Karol believes the emphasis in the decision on “commercial licensing” misinterprets copyright and fair use, and finds the line of analysis a conceptual failing. He believes that commercial licensing is not a “use” under fair use, but a grant of permission. He is concerned that licensing a work will now expose content licensors to direct copyright liability because of the conceptual flaw in
the Court’s analysis.

We are also pleased to include Cambridge Ph.D. candidate, Wednesday Eden’s piece, “The ‘Unpropertizable’ Public Domain In UK and EU Copyright Law.” Eden uses David Lange’s seminal 1981 to revisit the role of nonproprertizable elements of the public domain. Taking scholarship from the U.S. and applying it to the UK and EU, she seeks to answer the following question: “whether, amid the risk of encroachment by copyright, there are subject matters in the public domain that are unpropertizable.” Eden is particularly concerned with recent developments with the coming into force in the UK of Retained EU Law (Revocation and Reform) Act 2023 (“REUL Act”) on January 1, 2024, which “opens up the possibility for increasing divergence between both jurisdictions as to the “unpropertizable” status of certain subject matters in copyright law.”

Finally, we close out this issue with a book review by Mark Bartholomew, Vice Dean for Research and Professor of Law at University of Buffalo School of Law. He reviews IP ACCIDENTS: NEGLIGENCE LIABILITY IN INTELLECTUAL PROPERTY, by Patrick R. Goold (Cambridge University Press, 2022). In many ways, this rounds out our judicial decision making of the issue.

We are pleased to be presenting such a robust issue. We are remiss that we are still behind on our publishing schedule. Issue 71(1) should have come out in Spring 2024, but because of publisher delays, the issue will be available in Fall 2024. Again, we hope you enjoy these articles and that they give you some things to think about when it comes to copyright.

Elizabeth Townsend Gard
John E. Koerner Endowed Professor of Law
Tulane University Law School
townsendgard@tulane.edu
eic@copyrightsociety.org

Alfred Yen
Professor of Law and Dean’s Distinguished Scholar
Boston College Law School
alfred.yen@bc.edu