In a post a while back, I quoted from Justice Stephen Breyer’s dissents in two important copyright cases of the past decade, Eldred v. Ashcroft (2003), which upheld the copyright term extensions adopted by Congress in the Sony Bono Memorial Copyright Term Extension Act of 1998, and Golan v. Holder (2012), which upheld an act of Congress that restored copyright protection to certain old foreign works which, for one reason or another, had previously fallen into the public domain in the United States. In those dissents and others, Justice Breyer had established himself as one of the Supreme Court’s leading intellectual property law skeptics, along with now-retired Justice John Paul Stevens. (Not coincidentally, I think, Justices Breyer and Stevens were also the Court’s most sophisticated members in the area of antitrust.) Last week, however, Justice Breyer delivered the majority opinion for the Court in a contentious copyright case, Kirtsaeng v. Wiley & Sons, coming down against the copyright holder on the issue of whether the “first sale” doctrine applies where the first sale of a copyrighted item occurred abroad. Justice Breyer conceded that the Constitution gives copyright owners a limited right to exclude competition. “But,” he went on, “the Constitution’s language nowhere suggests that its limited exclusive right should include a right to divide markets or a concomitant right to charge different purchasers different prices for the same book, say to increase or to maximize gain.”
Breyer was also the author of last term’s unanimous and rather broadly drawn opinion in Mayo Collaborative Services v. Prometheus Labs, which held that a method of calibrating dosages of drugs used to treat autoimmune disease, which relied upon measurement of metobolites found in the bloodstream upon administration of the drugs, was an unpatentable law of nature. Have we reached an inflection point where Justice Breyer is no longer just the Court’s leading skeptic on IP protection, but where he will lead a major retrenchment?