How Copyright Case Sheds Light on Ethics Issues at SCOTUS

On September 4, the U.S. Court of Appeals for the Second Circuit ruled in favor of book publishers in their copyright case against the Internet Archive. The case, which closely concerns copyright and online book distribution, has drawn the attention of open Internet advocates and the publishing industry but would not normally attract wide attention.

However, if the case goes to the Supreme Court, it will be one of the most glaring examples of the lack of enforceable ethical rules and principles for recusing judges from adjudicating in that court.

Six of the nine Supreme Court justices have published books with publishers involved in the case. Justices Sonia Sotomayor, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson have published books or have publishing deals with Penguin Random House. HarperCollins has published books by Justices Clarence Thomas and Gorsuch. And Justice Brett Kavanaugh has a publishing deal with Hachette. (Neither publisher responded to requests for comment.)

The case involves the nonprofit Internet Archive’s digital lending library, which expanded in the early days of the COVID-19 pandemic. The publishers challenged the archive’s practice of copying and lending digital copies of library books without restriction, through what the archive calls its National Emergency Library, as a copyright infringement that threatens authors’ earnings. A district court and an appeals court ruled in favor of the publishers, finding that the archive’s digital lending practices violated copyright law.

The Internet Archive has not yet appealed to the Supreme Court. A spokesperson for the Internet Archive told HuffPost that the nonprofit is still reviewing the appeals court’s decision. But if the case were to go to the higher court, it would raise serious questions about individual justices’ self-enforcement of conflict-of-interest rules at a time when the court is embroiled in ethical controversies, particularly over Thomas’s receipt of gifts from friends and wealthy conservative benefactors.

Because the court is not bound by any enforceable code of conduct that would require judges to recuse themselves over potential conflicts of interest, each judge can decide whether to sit in cases, including cases in which he or she has a financial relationship with one of the parties. Each individual judge is guided by his or her own personal judgment, not by a universal rule.

The lack of specific rules for recusing judges could lead to chaos if the Internet Archive case is brought forward, as some judges will choose to recuse judges due to their financial ties to publishers, while others will choose to hear the case despite existing publishing agreements.

“I don’t like the fact that we can go into a case like this without having a clear view of where each judge stands ethically,” said Gabe Roth, executive director of Fix The Court, a group that monitors judicial ethics.

The court’s self-enforcement of ethics rules allows the justices to follow them differently. Liberal justices Elena Kagan, Sotomayor, and Jackson have historically cited the code of conduct for their recuses, while conservatives have generally not. Justices Samuel Alito and John Roberts have corporate holdings—at least once a clear conflict of interest for Roberts—while the others do not.

In other publisher cases, the justices have also taken different positions on recusing themselves. Both Sotomayor and Gorsuch chose not to recuse themselves when the court declined to hear cases involving Penguin Random House, according to CNN. Sotomayor has since indicated through the Supreme Court press office that she will recuse herself from future Penguin Random House cases. No other justices have said they would also recuse themselves from cases involving their book publishers.

One factor that can help determine whether a judge has a conflict is whether the judges have an ongoing financial relationship with a given publisher. Thomas, for example, published his memoirs with HarperCollins in 2007. That may be long enough ago not to warrant exclusion, depending on how much royalties he still receives. However, all the other judges have published books or signed publishing deals with the Hachette v. Internet Archive parties within the past five years.

“I think these judges should recuse themselves from the case,” Roth said of judges who have current or recent financial ties to publishers.

The Supreme Court Ethics Act, introduced by Sen. Sheldon Whitehouse (D-I.) and Rep. Hank Johnson (D-Ga.), would require justices to recuse themselves from cases involving a party with whom they have had a financial relationship in the past six years.

If that rule were implemented in Hachette, it would require the recusing of five justices — Sotomayor, Gorsuch, Kavanaugh, Barrett and Jackson. That would leave four justices to hear the case, the minimum required for a quorum.

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