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28 Colum. J.L. & Arts 315 (2004-2005)
The Blackmun Papers: A Peek behind the Scenes of a Quarter Century of Supreme Court Copyright Jurisprudence

handle is hein.journals/cjla28 and id is 325 raw text is: The Blackmun Papers: A Peek Behind the Scenes of a Quarter
Century of Supreme Court Copyright Jurisprudence
Jonathan Band and Tara Weinstein*
On March 4, 2004, five years after the death of Associate Justice Harry A.
Blackmun, the Library of Congress opened his papers to the public. During his
twenty-five years on the Court, Justice Blackmun took part in many significant
copyright decisions. His papers reveal the Court as a profoundly human institution,
with the Justices often struggling to fashion opinions that could gain the support of
a majority. The Justices clearly cared about the copyright merits, but they were
also willing to compromise to achieve a certain result. Although the Justices
focused on the arguments contained in the parties' briefs, their personal experiences
prior to ascending to the bench influenced their thinking. In several cases, the final
opinion was anything but inevitable.
This Article traces the decision-making and opinion-writing processes of nine
copyright decisions from Conference to publication through an examination of the
correspondence contained within Justice Blackmun's papers. Because an in-depth
analysis of the correspondence surrounding Sony v. Universal' based on the papers
of Justice Marshall has already been performed,2 and because Justice Blackmun's
files reveal nothing new regarding Sony v. Universal, this article does not address
that case. Rather, this Article focuses on other important copyright decisions
rendered by the Court during Justice Blackmun's tenure.3
Goldstein and other defendants were convicted of violating a California statute
that prohibited individuals from duplicating sound recordings with the intent to sell
*  Jonathan Band is a partner in the Washington, D.C. office of Morrison & Foerster LLP. Tara
Weinstein was a summer associate at Morrison & Foerster LLP and is a student at the Georgetown
University Law Center. The authors would like to acknowledge the assistance of Professor Paul
Goldstein in the preparation of this article.
1. 464 U.S. 417 (1984).
2. See Jonathan Band & Andrew J. McLaughlin, The Marshall Papers: A Peek Behind the Scenes
at the Making of Sony v. Universal, 17 COLUM.-VLA J.L. & ARTS 427 (1993).
3. This article does not discuss copyright decisions on which Justice Blackmun's papers did not
contain interesting revelations, for example, Stewart v. Abend, 495 U.S. 207 (1990).
4. 412 U.S. 546 (1973).

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