Author

Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.

Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works. Failing a congressional response, there may exist remedies under state law and through the efforts of private parties to achieve these ends.

After Justice Antonin Scalia’s death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they would not consider or vote on any replacement nominees from President Barack Obama. Instead, Senate Republicans deliberately seek to transfer President Obama’s power to appoint Justice Scalia’s replacement to the next elected President. This plan has generated substantial debate, but the debates have yet to engage with some of the most important historic, pragmatic, and constitutional risks of the plan. With Judge Merrick Garland’s nomination to the U.S. Supreme Court pending and Donald Trump, the presumptive nominee of the Republican Party, announcing his alternative list of nominees if elected, this Article seeks to bring greater attention to these risks.

We begin with history and show a striking fact that has not yet been recognized: There have been 103 prior cases in which—like the case of President Obama’s nomination of Judge Garland—an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice, by and with the advice and consent of the Senate. This is true even of all eight such cases where the nomination process began during an election year. By contrast, there have been only six prior cases in which the Senate pursued a course of action that—like the current Republican Plan—deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor. In all six such cases, there were, however, contemporaneous questions, not present here, about the status of the nominating President as the most recently elected President. The historical rule that best accounts for senatorial practices over the entirety of U.S. history is thus the following: While the Senate has the constitutional power to provide advice and consent with respect to particular Supreme Court nominees and reject (or resist) particular candidates on a broad range of grounds, the Senate may only use this power to deliberately transfer a sitting President’s Supreme Court appointment powers to a successor in the highly unusual circumstance where the President’s status as the most recently elected President is in doubt.

Given this more than two-century long tradition, the Senate Republicans’ current plan marks a much greater departure from historical precedent than has thus far been recognized. There is, however, still a further question whether the historical rule we uncover reflects a mere senatorial tradition, which should govern internal senatorial practices of fair dealing, or has further ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. In either case, the consequences of the plan are far more serious than its architects could have originally understood. After describing both possibilities, we suggest that Senate Republicans should rethink their plan so as to avoid these newly exposed historical, pragmatic and constitutional risks. Instead of continuing forward, the Senate should do what it has always done in similar past circumstances. It should proceed to full Senate consideration of Judge Garland or any other nominees that President Obama submits in a timely manner.

Robin Bradley Kar & Jason Mazzone, The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia, 91 N.Y.U. L. Rev. Online 53 (2016).