How A Copyright Case Is Shining A Spotlight On SCOTUS Ethics Issues

Six Supreme Court justices have had financial relationships with the publishers involved in Hachette v. Internet Archive.

On Sept. 4, the Second Circuit Court of Appeals ruled in favor of book publishers in their copyright case against the Internet Archive. The case, which narrowly involves questions of copyright and the online distribution of books, has garnered the attention of open-internet advocates and the publishing industry, but normally would not generate broad interest.

But if it heads to the Supreme Court, it would make for one of the most glaring examples of the court’s lack of enforceable ethics and recusal rules yet.

Six out of the high court’s nine justices have published books with the publishers involved in the case. Justices Sonia Sotomayor, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson have all published books or signed book deals with Penguin Random House. HarperCollins has published books by justices Clarence Thomas and Gorsuch. And Justice Brett Kavanaugh is signed to a book deal with Hachette. (None of the publishers responded to requests for comment.)

The case involves a digital lending library operated by the nonprofit Internet Archive that it expanded during the early days of the COVID-19 pandemic. The publishers challenged the archive’s practice of copying and lending out digital copies of library books with no limit, through what the archive calls its National Emergency Library, as a violation of copyright that threatens authors’ earnings. A district court and the appeals court both ruled in favor of the publishers, finding that the archive’s digital lending practices violated copyright law.

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