Four Justices, One Mega-Publisher, and a Supreme Court Copyright Debacle (Guest Blog Post)
by Prof. Guy Rub, Temple University Beasley School of Law
What do Amy Coney Barrett and Ketanji Brown Jackson do for a living?
The obvious answer is that they are Associate Justices of the United States Supreme Court. That is presumably how they spend most of their working hours. But if we look at their income rather than their job descriptions, the answer becomes less obvious.
Apparently, for some Justices, deciding cases is not their most lucrative occupation. Writing books is.
While court ethics rules, including the Supreme Court’s own Code of Conduct, cap outside income at just over $30,000, copyright royalties and book advances are an exception. There is no ceiling whatsoever on how much a Justice can collect from a publisher.
Some might think that it is self-evident that a government official—let alone a Supreme Court Justice—generating most of their income, millions of dollars, from a private conglomerate is obviously a serious problem. But if that doesn’t immediately trouble you, perhaps the extraordinary debacle that unfolded at the Supreme Court this week will.
The Fifth Circuit’s Copyright Adventure
On January 12, 2026, the Fifth Circuit decided Vetter v. Resnik. This trainwreck of an opinion has already been discussed at great length, including on this blog, so I can be brief.
In Vetter, the Fifth Circuit held that when an author terminates a copyright grant under the U.S. Copyright Act, that termination can recapture copyright interests worldwide. To reach that surprising conclusion, the Fifth Circuit effectively treated foreign copyrights as mere extensions of U.S. copyright, rather than as independent rights arising under the copyright laws of other countries.
That was quite a move. Original, certainly. But it also potentially upends decades of understanding about copyright territoriality and the relationship between domestic termination rights and foreign copyright systems.
There is no need to mince words. The decision seems flatly wrong. It has been heavily criticized by many, including at length by Professor Tyler Ochoa on this very blog (and by me in a forthcoming article).
A Copyright Rescue Mission Goes Shockingly Wrong
Fortunately, the Supreme Court exists to resolve exactly this sort of problem. And in recent years it has shown a certain willingness to rein in the Fifth Circuit’s, shall we say, “creativity.”
There was, however, a practical obstacle. The original losing parties, Robert Resnik and his music publishing business, presumably had little incentive to pursue expensive Supreme Court litigation. Understandably so. The foreign rights associated with one relatively old song might not justify the cost of further litigation, even if the resulting precedent has significant industry-wide implications.
But then the music industry came to the rescue. Or so it seemed.
After the Fifth Circuit decision, the four largest music publishers in the world—Sony, Universal, Warner, and BMG—acquired the disputed copyright interest from Resnik and substituted themselves as defendants. They retained Paul Clement, one of the country’s most prominent Supreme Court advocates, and petitioned the Court to review the decision.
The petition attracted five amicus briefs, including submissions from the Motion Picture Association, the RIAA, international entertainment industry groups, and 20 intellectual property law professors (myself included), led by Professor Ochoa.
The petition was fully briefed at the certiorari stage, including an opposition and reply. This was a serious, coordinated, presumably expensive industry effort to obtain Supreme Court review.
And then came an entirely foreseeable problem. One of the four petitioners was BMG. Unfortunately, BMG belongs to the same corporate family as Penguin Random House, the book publisher of four sitting Supreme Court Justices: Barrett, Gorsuch, Jackson, and Sotomayor.
One hardly needs an elaborate theory of judicial ethics to recognize the potential recusal problem. What makes the industry’s choice particularly baffling is that BMG’s participation was hardly indispensable to assembling a formidable coalition of music publishers. Moreover, this was not an unprecedented problem. In May 2025, the Supreme Court confronted a similar situation in Baker v. Coates, an obscure pro se copyright infringement case involving allegations that Ta-Nehisi Coates and others had copied a writer’s work. There, presumably because Penguin Random House’s parent company was among the defendants, the same four Justices (together with Justice Alito, although probably for different reasons) recused themselves.
But a Supreme Court case cannot handle so many recusals. Under 28 U.S.C. § 1, six Justices are required for a Supreme Court quorum. Thus, in Baker, the Supreme Court could not consider the cert petition on its merits.
The exact same thing—only in a much more meaningful dispute—happened here. The same four Justices who have turned Penguin Random House into an extremely generous source of personal income—Barrett, Gorsuch, Jackson, and Sotomayor—recused themselves. Without a quorum, on October 19, 2026, the Supreme Court disposed of the publishers’ petition in Vetter.
Immediate Implications on Cross-Border Licenses
While this is a rather stunning turn of events, the fallout from this particular episode may prove easier to address than the deeper institutional problem it exposes.
Losing a certiorari petition under such circumstances is an almost laughable blunder. Four massive, sophisticated companies inserted themselves into a dispute, recruited a top Supreme Court litigator, assembled a coalition of amici, and spent considerable resources pursuing review. Yet in doing so, they also created the recusal problem that doomed their efforts. We don’t see this kind of ball-dropping at this level every day.
For now, Vetter remains binding within the Fifth Circuit, but other courts need not follow it. There is already real tension between its reasoning and Second Circuit case law. Yet, the decision potentially casts doubt on the ownership of foreign rights under a large number of existing copyright agreements. And because copyright termination rights become exercisable on a rolling basis, that uncertainty is not confined to any fixed set of agreements. While cross-border copyright termination litigation has historically been uncommon, the resulting uncertainty may still complicate licensing and other transactions and generate further disputes.
It is nevertheless quite possible that the Supreme Court will eventually get another opportunity to clean up this mess. And hopefully, future litigants will verify that nobody on their team belongs to the same corporate empire that has been paying Supreme Court Justices millions of dollars for their literary side gigs.
That is the relatively straightforward part of this story. But the more troubling implications concern the Supreme Court’s ability to adjudicate copyright disputes generally.
The Supreme Court Has a Publishing Problem
Consider Penguin Random House itself.
This is not some small publisher that happens to have multimillion-dollar contracts with several Supreme Court Justices. It is the world’s largest trade book publishing group, with a vast catalog of copyrighted works. Its parent corporation, Bertelsmann, has substantial interests throughout the media and entertainment industries. Its sister company, BMG, is one of the world’s largest music companies, representing millions of musical compositions.
These businesses are not peripheral participants in the copyright ecosystem. They are among its most important commercial actors.
And, as you might expect, Vetter is not the only copyright litigation involving the Bertelsmann companies. Not even close. And the stakes in some of those other cases are much higher.
Consider just one issue: AI training. In March 2026, BMG sued Anthropic in California, alleging that hundreds of its copyrighted song lyrics had been unlawfully used to train generative AI systems. Penguin Random House authors have also played prominent roles in AI-training litigation. Andrea Bartz, the lead plaintiff in the landmark Bartz v. Anthropic case, is a Penguin Random House author (and the company itself was entitled to claim a share of the gigantic $1.5 billion settlement in this case). So are John Grisham, George R. R. Martin, and Jodi Picoult (and many others)—all named plaintiffs in the pending, massive In re OpenAI litigation in the Southern District of New York.
So, it is not hard to imagine important copyright litigation, possibly dealing with AI training, involving Penguin Random House or BMG reaching the Supreme Court. What happens then? If the four Justices recuse themselves, as they did in Vetter, the Court will again lack a quorum. We would be left with the extraordinary situation where some of the country’s most important copyright disputes cannot receive Supreme Court review because too many Justices have lucrative commercial relationships with a sprawling media group.
That alone is a serious institutional problem.
But the difficulty extends much further than that. What if another AI-training case, even one that does not involve BMG or Penguin Random House or even their authors, reaches the Supreme Court? Presumably, those four Justices would not recuse themselves.
Yet such a case will probably require the Court to address many core questions—such as the transformative nature of AI training, the importance of training licenses, and the validity of the market dilution theory. These questions could have enormous consequences for all AI-training cases and could massively affect Penguin Random House and BMG.
So, we arrive at an uncomfortable situation: the Justices may be unable to hear cases directly involving their publisher but remain free to decide comparable cases that could substantially affect the same publisher’s commercial interests.
Of course, we should not take this argument to an absurd extreme. Judges routinely decide cases that have some indirect effect on industries in which they have some financial interests. But surely there is a difference between having an incidental financial interest in an industry and receiving millions of dollars from a private company whose business may be substantially affected by the legal rules one is asked to announce.
And this brings us to the deeper problem: the legitimacy of the Court itself.
When Copyright’s Judges Are Copyright’s Beneficiaries
The problem is not merely that four Justices have lucrative business relationships with one publishing behemoth. It’s that they’ve become multimillion-dollar beneficiaries of the very copyright system they’re supposed to impartially adjudicate.
As we know, copyright law is not simply a mechanism for ensuring that authors and publishers receive as much money as possible. Instead, as the Supreme Court itself noted, it “reflects a balance of competing claims upon the public interest.”
When Justices receive millions of dollars from exploiting their own copyrighted works, they become financially invested in one side of that broader policy landscape. Even if it doesn’t technically require them to recuse themselves, the appearance problem is glaring. Those Justices collect millions of dollars under contracts with a specific company whose interests frequently come before federal courts.
At some point, the magnitude changes the nature of the relationship. A modest royalty check looks like incidental income from intellectual activity. A multimillion-dollar book deal looks like a major commercial relationship. And it is perfectly reasonable for the public to wonder whether those relationships matter.
Consider, for example, Justice Sonia Sotomayor.
In my view, Sotomayor is an exceptional, important, and brilliant Justice, bringing a distinctive voice and perspective that the Court otherwise might lack. She is also arguably the most experienced of the sitting Justices in copyright law, having practiced intellectual property law before serving on the Southern District of New York and the Second Circuit.
For many years on the Supreme Court, she did not author its major copyright opinions. More recently, however, she wrote the majority opinion in Andy Warhol Foundation v. Goldsmith and a concurrence in Cox Communications v. Sony Music Entertainment. In both, she advanced positions relatively protective of copyright owners. I actually do not necessarily disagree with her. I supported the result in Warhol, although I found its reasoning problematic. And I was very sympathetic to her analysis in Cox.
I’m obviously not suggesting that her book income influenced either opinion. But why should actual corruption be the standard? As noted, since joining the Court, Sotomayor has received more than $4 million in book income from Penguin Random House and its predecessor companies. During that time, she has published multiple books with the publisher. She continues to participate in promotional events for her books, actively supported and publicized by Penguin Random House. This is an ongoing, meaningful business relationship, involving significant labor and significant sums of money, between a prominent Justice and the largest trade book publisher in the U.S. and in the world. During that time, Sotomayor has authored and joined major opinions addressing the scope of copyright protection, including questions with obvious economic implications for copyright owners and their publishers.
Isn’t there something deeply uncomfortable about this arrangement, even if everything is entirely lawful?
This is fundamentally a question of public confidence. Judicial legitimacy requires more than the absence of demonstrable bribery or misconduct. It requires that the public have good reason to believe that cases are being decided independently, without significant financial relationships casting doubt on the process. The appearance of impropriety, after all, is as important as the actual commission of improper acts when it comes to legitimacy.
And to state the obvious: No, none of this is intended to diminish the serious ethics controversies involving Justices Thomas and Alito, including the revelations about undisclosed luxury travel and questions about recusal. Those controversies deserve sustained scrutiny in their own right. Pointing to the problems created by the Justices’ publishing relationships is not an excuse for anyone else’s actions. The Supreme Court seems remarkably capable of having more than one ethics problem at the same time.
In fact, maybe that’s what makes this situation so troubling. Unlike some of the other controversies, the publishing arrangements are largely out in the open. Everything is seemingly above-board.
And yet four Justices have just been unable to participate in a significant copyright case because of their connections to a publishing conglomerate. Meanwhile, those same relationships may raise legitimate concerns about the appearance of impartiality when the Justices do participate in other copyright disputes.
Should Book Income Get a Free Pass?
The Vetter debacle should be an opportunity to reconsider the Justices’ relationships with commercial publishers, the rules governing book income, and the limits of recusal as a solution. In particular, and while I do not pretend to offer a comprehensive framework for reform here, I believe it is quite difficult to continue and defend an ethics regime that limits most forms of outside income while allowing Justices to receive unlimited advances and royalties from commercial publishers.
Treating these payments as merely passive returns on existing intellectual property is something of a fiction. We are talking about enormous sums paid for books that Justices write and promote while on the bench, whose commercial value is tied to the judicial offices they hold. In substance, how is this so different from teaching, which Justices routinely do, but for which their compensation is subject to strict limits? If anything, teaching generally poses fewer concerns about conflicts of interest. And considering that those limits have not prevented Justices from teaching, we should not assume that similar limits would prevent them from writing.
We are entitled to a Court that can resolve important copyright disputes. And we are entitled to a Court whose decisions carry legitimacy, without reasonable doubts arising from its members’ multimillion-dollar relationships with businesses that stand to benefit or lose from those decisions.