On October 30, counsel for Dr. Stephen Thaler requested that the U.S. Supreme Court hold its Petition for Certiorari in Thaler v. Perlmutter until after the Court rules on the matter of the dismissal of Copyright Office Director Shira Perlmutter by the White House in May. As the letter states, “The Blanche and Slaughter cases consider whether Director Perlmutter, a named party in the matter for which Dr. Thaler filed a Petition, shall continue in her position at the Copyright Office. As such, it has significant relevance for the outcome of the instant matter, particularly because her termination appears to be related to her stance on copyright for works created by artificial intelligence, which is the focus of Dr. Thaler’s case.”
Notwithstanding the Court’s obligation to decide whether the President has the authority to remove the head of the Copyright Office, there is little more than rumor and assumption that Director Perlmutter was dismissed because of her “stance” on artificial intelligence. And even if she was dismissed on that basis, it should have no bearing on whether the Court will weigh Dr. Thaler’s legal arguments, which are not in conflict with Perlmutter, but rather with the history of copyright law.
Most importantly, the human authorship doctrine, which Thaler seeks to erase, is not a philosophy unique to the views of Director Perlmutter, and the question is entirely separate from those raised in the jurisdictional matters relevant to the Blanche and Slaughter cases. The Court has ample guidance to find that the human authorship doctrine is well-founded in both the statutory and history and tradition of copyright law, and it should decide whether to grant cert on that basis.
Instead, with his request to hold cert, Dr. Thaler implies that the Court should wait to see whether a new appointee, friendly to the interests of AI developers, might replace Director Perlmutter. But even if that will be the result of the Blanche and Slaughter decisions, the Court is aware that 1) the Copyright Office, in its advisory capacity, does not make copyright law; and 2) Thaler’s argument for omitting the human authorship doctrine would have significant statutory, case law, and constitutional implications irrespective of who leads the Office.
Especially after the Court’s decision in Loper Bright Enterprises, overturning Chevron deference, it seems inconsistent to argue that the leadership of an agency, which has never been accorded Chevron, is in any way determinative of the foundational question presented by Dr. Thaler. In my view, the Court should deny cert on the grounds that the D.C. Circuit ruled correctly, but if it agrees to hear the case, it should not be distracted by the notion that copyright’s core principles are mere matters of one party’s opinion.
