Court nukes OSG in copyright cases.
Samuelson 23 [Pamela; Richard M. Sherman Distinguished Professor of Law, Co-Director of the Berkeley Center for Law & Technology, and published widely in the areas of copyright, software protection and cyberlaw; 3/7/2023; "The Solicitor General's Mixed Record of Success in Supreme Court Copyright Cases"; University of California, Berkeley School of Law; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4381579 ;] s.low
Another indicator of OSG’s influence has been the frequency with which the Court cites its briefs or arguments. Empirical studies have shown that OSG’s briefs are “significantly more likely to be cited” by the Court than amicus briefs filed by other entities.378 One study covering a fifty-year period in the mid- to late-twentieth century reported that OSG briefs were cited in just over 40% of the Court’s cases in which OSG filed.379
Citations to OSG’s briefs or arguments in the Court’s copyright cases are in keeping with this indicator of its influence. Of the Court’s seventeen copyright rulings in which OSG participated, OSG’s briefs or arguments were mentioned in nine (53%).380 But only in Eldred did the Court cite OSG’s briefs repeatedly and in a positive manner.381
Four of the eight substantive interpretation decisions mentioned OSG’s briefs. But in three, the Court expressly criticized OSG. The Court in Quality King, for instance, opined that OSG’s had “a cramped reading” of §§ 602(a) and 109(a) and characterized its policy arguments as “irrelevant.”382 In Kirtsaeng I, the Court said that OSG’s statutory argument was “not defensible”383 and chided OSG for not taking seriously the likely negative impacts of a ruling in Wiley’s favor.384 The Court also found fault with OSG’s arguments in Star Athletica. 385 It criticized OSG for violating a norm about considering arguments not raised by the parties and disagreed with OSG about the statutory basis for upholding Varsity’s claim of copyright and its conceptualization of the work of authorship at issue.
Yet the Court often ignored OSG’s arguments. It made no mention of OSG’s briefs or arguments, for instance, in Google, Georgia, or Grokster. 386 And a unanimous Court in CCNV relegated to a footnote the government’s argument in favor of the formal-salaried-employee standard, citing another amicus brief favoring that standard, but not the government’s brief. 387
Positive citations to OSG’s amicus arguments are infrequent in the Court’s copyright opinions and occur as discrete instances, 388 although traces of OSG’s influence can sometimes be found even when OSG’s briefs were not cited for key propositions. 389
It is noteworthy that the Court has criticized OSG’s amicus arguments in copyright cases more often than it has praised them. The next Part suggests some reasons why OSG’s arguments have had mixed success in the Court’s copyright cases.