Prof. Menell Comments on 15% of My Article; I Respond.

This is the first of a series of blog posts in which I respond, in detail, to the following assertion by Prof. Peter Menell in a recent blog post post made on the Media Institute’s website:

Mr. Rick Sanders also questioned my exploration of legislative history, suggesting that it is improper to consult legislative history predating the enacting Congress. His assertion overlooks Supreme Court opinions in Kirtsaeng, Tasini, CCNV, Abend, Dowling, and Sony [a/k/a “Betamax”] adverting to 1976 Copyright Act legislative history predating the enacting Congress.

Prof. Menell was, indirectly, responding to one (of several) arguments I made in an article I wrote on whether the distribution right includes a “making available” right, i.e., whether just making something (a book or digital song file) available (for sale or download) violates the distribution right. I was, in turn, responding to Prof. Menell’s re-writing of the section of the authoritative treaties on copyright law, Nimmer on Copyright. Prof. David Nimmer, who maintains (and mostly writes) Nimmer on Copyright had previously either (depending on whose recollection you’re using) taken no position on the issue or was leaning against the existence of a “making available” right (which is certainly how the courts read it). The truth was that the courts were split on the issue, with perhaps a slight trend against, but Prof. Nimmer had been so persuaded by Prof. Menell’s tour-de-force article, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age that he invited Prof. Menell to re-write the crucial section in his treatise to come firmly on the side of “for” the existence of a “making available” right.

I objected as a practitioner because, while Prof. Menell’s theories were intriguing and the result of not a little scholarship, they were not exactly settled law. And the job of a treatise, from a practitioner’s point of view, is to describe the actual state of the law, not what it ought to be (whether from a policy or a scholarly point of view). A law review article influences the law by providing a new roadmap for practitioners and courts to follow, but it would still be up to them to use Prof. Menell’s arguments convincingly. It is not authoritative in itself. A treatise, on the other hand, has authority because it is the result of a careful review or distillation of actual legal authorities, bound together by an expert on the subject matter. Put another way, in the context of a treatise, as opposed to a law review, Prof. Menell’s burden of persuasion is very high, beyond clear and convincing. It is a burden he does not carry.

Prof. Menell has not read my article, I don’t think, but this one argument percolated down to him via this circuitous route: The U.S. Copyright Office issued a call for comments on the subject of the “making available right,” including whether it already existed or would need to be specifically enacted by Congress. I initially didn’t intend to contribute a comment, but some folks talked me into it, partially because the Nimmer-Menell view of things was gaining traction in Congress (and apparently I’m the only one who bothered to scrutinize Prof. Menell’s arguments?). I submitted my own comment.. And so did Prof. Menell. There was a roundtable, which was attended by a number of commentators (but not me), and my name and this one argument seems to have come up—I’m thinking by Andrew Bridges, who (1) was one of the persons who tried to convince me to comment, and (2) was also submitted a comment.

Why it’s Inappropriate to Rely on Pre-Enactment Legislative Materials

I’m not quite sure why this is the only argument from my article that percolated down. It’s not the most important argument I made, and it’s not particularly crucial to my overall thesis. It’s also the one I had the most misgivings about because the legislative history of the 1976 Act really is odd, and perhaps it should be an exception to the rule. Thanks to Prof. Menell’s comment, I no longer have those misgivings (you’ll see why).

In my article, I asserted—among other things—that it would be improper for a court to consider the legislative materials generated by a Congress that had not enacted the statute to which the materials pertained. This issue is especially vexed in connection with the Copyright Act of 1976 (the “1976 Act”) because the vast majority of its legislative materials were generated in the 1960’s.

Prof. Menell, in arguing that the distribution right included a right to “make available,” relied heavily on such materials. He pointed out that the term “distribute” was meant to encompass both the right to “publish” and the right to “vend” under the predecessor Copyright Act of 1909 (the “1909 Act”), an uncontroversial point. He then argued that the right to “publish” had been interpreted by the courts to include the mere act of making a work available to the public, that Congress was aware of these decisions and specifically intended to incorporate those court decisions into the right to distribute. He pointed to reports generated by meetings in the 1960’s between and among industry representatives and the U.S. Copyright Office to buttress this awareness—documents he referred to as copyright’s “lost ark.”

I found this reasoning flawed in several respects:

  • It was not at all clear that the right to publish included the act of making available to the public. None of the decisions on which Prof. Menell relied actually involved the publication right but involved publication as a prerequisite to copyright protection under the 1909 Act (which is not longer the case). Only one court decision addressed the scope of the publication right—an admittedly strange lower-court ruling—and it rejected the idea that a “publication” could involve something short of an actual distribution.
  • It was not at all clear whether resort to legislative materials was even appropriate, since many if not most courts would probably find the meaning of “distribute” fairly clear in statutory context.
  • The materials on which Prof. Menell relied were not generated by Congress or had any input by any member of Congress.
  • Even if the materials had been generated by Congress, they were generated by the wrong Congress, i.e., not by the Congress that actually enacted the 1976 Act.

These last two points sprung from the same fundamental idea.* The purpose of statutory interpretation is to effect the intent of Congress: what was Congress thinking or hoping to accomplish by enacting** the legislation? It’s a basic (small-d) democratic proposition. Congress represents the will of today’s voters, not yesterday’s (or, alas, even tomorrow’s). Thus, we should be limited to materials generated or adopted by Congress, and only by the Congress that enacted the legislation.

* The second point sprung from an even more fundamental idea. Ordinary citizens have a right to know what the law says. While legislative materials are not secret, they are not always easy to find; and they are lengthy and difficult to parse. Lawyers know their way around legislative materials, but others are not even aware—and would be a little shocked—of what might look like a parallel law. If even a layperson would wonder what Congress was getting at, then and only then, in my estimation, should we resort to legislative materials.

** Note I don’t say “drafting.” Many bills are actually drafted by lobbyists. While they are influential, they are not elected legislators.

There is caselaw to support the notion that, on those occasions where it is appropriate to refer to legislative materials, one is limited to those materials generated by (or have been adopted by) the Congress that enacted the legislation in question. In Lyons v. Georgia-Pacific Corp. Salaried Empls., the Eleventh Circuit had to interpret the ambiguous language found in § 203(e) of ERISA. The language at issue was added by Congress in 1986, but § 203(e) itself was enacted in 1984. The court found the 1986 legislative materials shed no light on the ambiguous statutory language, and one of the parties invited the court to look at the 1984 statutory materials. The court refused on grounds that the 1984 Congress didn’t enact the language in question; the 1986 Congress did. “The problem with that argument is that we are concerned with ERISA § 203(e), as amended by the 1986 legislation, not as it existed before.”

In Mizrahi v. Gonzales, the Second Circuit was faced with an ambiguous statutory provision that had been amended numerous times. Relevant language was enacted by different Congresses, which forced the court to look at older legislative materials. Even so, it was careful to limit its analysis to the materials generated by the Congress that actually enacted the language being analyzed.

I would argue that, if you can’t look at the legislative materials generated by a Congress only two years prior that actually passed closely related legislation, you can’t look at the legislative materials generated by a Congress more than 10 years prior that didn’t pass anything. But this isn’t a perfect argument. Unlike in Lyons, the 1976 Act was mostly drafted by 1966. Aren’t we interested in what the drafters intended? I would say we aren’t: enactment, not drafting, is what matters. The enacting Congress has every opportunity to adopt the reasoning of the drafting or investigating Congress, but it may have its own reasons for passing a languishing bill.

Prof. Menell Unintentionally Lends a Hand.

Prof. Menell is 100% about one thing: I did overlook these decisions. Which is funny because (except for Dowling) I am familiar with all of them, teach two of them (CCNV and Sony) and read Kirstaeng with great interest when it was handed down last year (so it ought to be fresh in my mind). I also regret it, partly because my article is poorer for it, but mostly because the decisions cited by Prof. Menell, taken as a whole, support my sub-thesis that it is inappropriate to rely on legislative materials that pre-date the enacting Congress.

After reviewing the Supreme Court decisions mentioned by Prof. Menell, plus one more (Mills Music v. Snyder, which I think supports Prof. Menell’s view), I conclude that, on a balance, these decisions support my argument that, when we resort to legislative materials, we look only at those generated by the Congress that enacted the legislation in question. This conclusion is based on following points:

  • Of the decisions cited by Prof. Menell (plus Snyder), only four actually relied or refused to rely on the 1960’s-era legislative materials; and of those four, two (Kirtsaeng and Stewart) support my position and two (CCNV and Snyder) support Prof. Menell’s position. The rest reference the 1960’s-era legislative materials only for background or context.
  • Kirtsaeng is the most recent decision, and it exhibits clear contempt for legislative history in general and the 1960’s-era materials in particular.
  • Stewart makes the point that the 1960’s-era materials fail to show Congressional intent.
  • The uses of 1960’s-era legislative materials in CCNV and Snyder are superfluous, though not, strictly speaking, dicta. The use occurs in support of unnecessary and alternative rationales for the Court’s holding. The Court was probably merely being thorough in addressing all of the parties’ arguments, as it usually is, so too much should not be read into these uses.
  • The use of 1960’s-era legislative materials in Snyder also cuts both ways. On the one hand, the Court references the 1960’s-era materials to show that Congress was aware a certain kind of music licensing arrangements. On the other hand, it refused, over dissent, to import from the legislative materials a broader purpose to help authors.
  • The precise issue of the propriety of relying on the 1960’s-era legislative materials was not raised in any of the decisions cited by Prof. Menell. Even parties who stood to be harmed by its use appeared to assume that it was proper to rely on it.
  • U.S. Circuit courts have held that pre-enactment legislative materials are irrelevant (see above), and the passive treatment of such materials by the U.S. Supreme Court isn’t enough to override an affirmative holding.

I’ll explain my reasoning in more detail next time.

Thanks for reading!