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Statutory Oddity:

I've been teaching copyright law for more than a decade, but I just noticed something most peculiar in the Copyright Act that I'm not sure has a parallel anywhere else in the US Code. Here's the background. Section 101 of the Copyright Act defines a "Work Made for Hire" as either

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a writ-ten instrument signed by them that the work shall be considered a work made for hire.

If something is a "work made for hire," the consequence is that the employer (under clause (1)), or the person commissioning the work (under (2)) is deemed to be the "author" of the work (and therefore owns all of the copyright in it).

It's a very important provision — hundreds of millions, maybe billions, of dollars worth of copyrighted work fall within its provisions every year — and every year I spend a couple of classes on it. What I never really focused on before is the paragraph that immediately follows the definitions quoted above:

"In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, nor the deletion of the words added by that amendment-- (A) shall be considered or otherwise given any legal significance, or (B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made for Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations."
?? I don't think I've ever seen a provision like that before. Here (thanks to a number of colleagues on the Ipprofs list who illuminated this for me) is the backstory. For many years, people in the recording industry had advanced the position that sound recordings were covered on the list of works made for hire as "audiovisual works." At the same time, they were trying to get the statute amended to add "sound recordings" to the list in paragraph 2. In 1999, on the eve of recess, they were successful in sneaking in a provision to that effect to an omnibus communications reform bill. When Congress reconvened, a number of representatives changed their mind (some claiming that they hadn't noticed the 11th hour amendment), and the provision was deleted.

Here's where it gets interesting. The recording industy folks were worried that now they'd be even worse off than they had been before the amendment was passed — because a court might reasonably interpret passage of the amendment as evidence that Congress did not believe that sound recordings were already covered in paragraph (2). So they added the provision quoted above to reassure the RIAA that deletion of the amendment would just, hopefully, restore the status quo ante.

What strikes me as odd in all this is the following: Can Congress tell courts not to "consider" certain things that incontrovertibly did happen in the past when they construe a statute? That is, the provision Congress inserted says to courts, in effect: "When interpreting the work made for hire provisions, you must not take into account certain facts about the world, namely the fact that in 1999 we amended the statute, and that in 2000 we deleted the amendment." I'm no constitutional law specialist, but that looks, to me, like it is encroaching on a core judicial function — the function of statutory interpretation; not just telling courts what Congress thinks a statute means (which Congress does all the time, via statutory definitions and the like), but telling courts what tools of statutory construction they may or may not use when interpreting the statute.

Update: Notwithstanding some off-topic comments, there's a pretty interesting discussion going on in the comments here. Among other things, there are a couple of law review articles on the subject which I didn't know about, and which appear, on the face of it, to argue opposite sides of the question: Linda Jellum's article in UCLA Law Review seems to lean towards my position (the provision is of questionable constitutionality), while Nick Rosenkranz's paper in the Harvard Law Review seems to point in a different direction on the question. DavidP

loki13 (mail):
Bull,

Sure... right after Zywicki gives us his mea culpa, and Prof. Bernstein decides to amend his magnum opus, "Why everything conservatives have done in history is right, and liberals are wrong . . . also, I'm not a Conservative, and, uh, something about Israel."

In the meantime, I suggest either asking for your money back, or starting your own blog.

ps- I am curious about this; don't legislatures by the simple inclusion of definitions tell the Court how to read a statute, also can't they explain that the reading of one particular part oa statute should not be read in light of other parts of the statute?
Well, I don't think they tell courts "how to read a statute," taking that (hyper)-literally. They tell courts what they think the statute means, all the time, and courts, generally speaking, according to THEIR canons of construction, give effect to that. But this looks different to me. This looks like Congress saying: you have to ignore something that happened, and pretend it didn't happen. Congress doesn't think those facts are relevant to the interpretation of the statute; fair enough. But I don't think they can by fiat declare that they are NOT relevant, and force courts to deem them not relevant.
10.9.2008 4:26pm
Daniel San:
So this means that they could get enough votes to tell the court to look the other way and pretend that nothing just happened, but not enough votes to clearly address the issue one way or another?

Not Congresses finest hour. But I say that a lot.
10.9.2008 4:26pm
Duffy Pratt (mail):
Instead of telling the Courts to ignore the facts, suppose Congress simply said that it intended this statute to have the effect it would have had if the amendments had neither been passed nor revoked. Same outcome, but no stepping on the court's toes? I think this issue is a non starter.
10.9.2008 4:38pm
krs:
It seems perfectly legitimate to me, and it looks as though Congress (or the drafters pulling the strings) is trying to clarify its intent avoid having courts make a hash out of their statute.

Congress can coin terms of art; it can give some statutes priority over other statutes; it can say "this statute doesn't affect that one; and (I think) it can give the courts guidance as to how to resolve ambiguities.

It seems to me that the apparent novelty of this statute comes from the awkwardness of the writing--it's really just something Congress does all of the time. It might have been more artful to say: "Neither Pub. L. No. [1999 Amendment, with the section number] nor Pub. L. No. [2000 Amendment, with the appropriate section number] shall have any application to determinations made under this subsection."
10.9.2008 4:45pm
krs:
In other words, I'm with loki13's postscript on this one.
10.9.2008 4:46pm
MikeR:
If it's in the statute, what's the problem? The cannons of statutory interpretation have generally been judicially determined, but I see no reason why they cannot be amended by statute, either generally or for specific provisions.
10.9.2008 4:46pm
Whining is really hard work:
Why don't the complainers go post in the Palin thread if you love hating on it so much? Or find another place to compain....or better yet look to the plank in thine own eye before attending to your neighbor-blogger's splinter?
10.9.2008 4:53pm
richard cabeza:
or better yet look to the plank in thine own eye before attending to your neighbor-blogger's splinter?

Yeah, I'll get right on my derangement.

Oh, wait. I'm not deranged.
10.9.2008 5:02pm
Observer:
I second Bull Duram's request.

Loki13: "Sure... right after Zywicki gives us his mea culpa, and Prof. Bernstein decides to amend his magnum opus, 'Why everything conservatives have done in history is right, and liberals are wrong'"

Bernstein is a libertarian, not a conservative.
10.9.2008 5:06pm
Anderson (mail):
Bernstein is a libertarian, not a conservative.

Yes, he says that, doesn't he?
10.9.2008 5:09pm
Cory J (mail):
Not quite the same thing, but I vaguely recall from employment discrimination that when Congress enacted the Civil Rights Act of 1991 after a case involving what "business necessity" meant, there was a lot of argument about what that term meant.

Congress added "business necessity" language and then said courts can only consider a short interpretive memorandum as the statute's legislative history. I remember thinking that was interesting.
10.9.2008 5:10pm
Hoosier:
Where does Tom Petty fit into all of this?
Nice catch . . . you and I must be the only 2 people who remember my posting a while back about Petty and the work for hire doctrine ...DavidP
10.9.2008 5:11pm
Cory J (mail):
Sorry about the sloppy first paragraph. I meant to convey that there was a lot of argument in Congress about what "business necessity" should mean in the new statute.
10.9.2008 5:11pm
krs:
As long as we're all making demands, I'd like it if all of the off-topic comments on this thread were deleted.
10.9.2008 5:15pm
CJColucci:
If a legislature wants a statute to be interpreted to mean "X," it should write the statute in language that says "X." It should not fool around by inserting rules or, worse, guidelines of interpretation into the statute and hoping courts take the hint.
10.9.2008 5:29pm
Saint Russell:
As long as we're all making demands, I'd like it if the United States had reasonable copyright laws for sound recordings. Even the earliest commercial recordings from the 1890s will not enter the public domain until 2067.
10.9.2008 5:33pm
Commentor (mail):
Courts are always asking what the intent of the legislature was; why can't the legislature anticipate the question and tell them?
10.9.2008 5:34pm
Nunzio:
How about this: In statutory cases, Congress can tell the court how to interpret a statute. E.g., repeal the Chevron doctrine, ignore legislative history, toss out the rule of the last antecedent.

In constitutional cases, Congress can't tell the court how to intpret a statute. E.g., can't look at history, can't overturn precedent of any case decided before 1974, etc.

Since this is a statute, Congress can do it.
10.9.2008 5:38pm
Brian K (mail):
Oh, wait. I'm not deranged.

i would be absolutely shocked if you managed to say this with a straight face.
10.9.2008 5:48pm
richard cabeza:
I have to admit that I was laughing, but part of that was Obama's poetry.
10.9.2008 5:53pm
Dave Hardy (mail) (www):
Interesting question. IF my faint memories of working at Interior 20 yrs ago... excuse me, 25 yrs ago, are correct, there was a case, perhaps 9th Circuit, on a related issue, something dealing with environmental analysis.

Statute read something like "if the agency does X, it will be deemed to have complied with enviro analysis law Y," or maybe if it does X in any legal challenge it shall be found to have complied with Y, where X was something quite different and lesser than Y. I have a faint memory that the Circuit held that the statute was an invasion of separation of powers, since it was so worded as to order a court to make a finding which was not, in fact, true.

Congress could always have simply said "this action is exempt from Y but must follow X," but my guess is that the language used was the result either or clumsy draftsmanship or someone being skittish about coming out and saying the action was exempt from X.
10.9.2008 5:56pm
Steve M.:
This isn't quite a jurisdiction stripping problem, but I think that's where you'd have to go for the applicable doctrine. (Unless there's some kind of weird First Amendment issue lurking around here. But there wouldn't seem to be any speech issue that isn't also applicable to the rest of copyright law.)

I think the outcome would depend on whether a court thinks that by including this language Congress was merely expressing its intent -- as legislatures sometimes do, by e.g. including preambulatory or other language describing a statute's purpose, or by stating that a statute is to be construed to the benefit of X class of parties, etc. -- or rather whether Congress is attempting to direct the courts to exercise the "judicial Power" in a particular way -- that is, to say "what the law is" (as opposed to what a statute says, which is different) or to decide the outcome of a particular class of cases without reference the contents of the governing statute. What law there is on the constitutional boundaries of jurisdiction stripping seems to indicate that Congress can say, "Oh, and by the way, we mean term 'X' to refer to A and B as well as C," but not "The statute refers to X, and it really does cover X without any exceptions, but if anyone from this lousy group of people sues and X's referring to A and B would benefit them, then no Court shall construe X to refer to A and B." There's a lot of daylight between those possibilities, and it's hard to know where to draw the line.

But the basic rule, I think, is that Congress can write rules and then explain how they are to be interpreted but it can't decide cases, which is, famously, the "province and duty" of the judiciary. The problem is when Congress goes beyond establishing rules, however expressed, that are applicable to anyone who happens to fall under a statute. The relevant questions would seem to be (1) whether the statutory language is neutral with respect to potential parties before a court and (2) whether the statute instructs a court to apply the statute to specific parties in specific ways, without regard to the general rule that the statute, or any other statute, establishes.

Here, it seems likely that a court would hold that Congress has done the former. That is, that the addition and later deletion of certain language doesn't indicate that Congress meant the term "audiovisual works" to exclude sound recordings. That applies to all parties, and it establishes a general -- if inartfully expressed -- rule.
10.9.2008 5:59pm
one of many:
I should extend Nunzio's comment by pointing out that the US constitution specifically gives Congress the power to create copyrights and outside congressional construction there is no basis for a court to consider the copyrights, so congress can certainly set whatever standards they wish to courts. Due process (which is where you would have to make a claim) doesn't apply to deprivation of "property" which only exists within a congressionally determined framework.
10.9.2008 6:08pm
Michael B (mail):
"I demand ..."

With prospects of obtaining precisely the same results, I demand ACORN respect the voting public, the election and the Bill of Rights.
10.9.2008 6:15pm
Bruce:
I just view the additional language as specifying what Congress's intent was in passing, and then repealing, the statute. Surely Congress is allowed to do that. You might have an issue if Congress was specifying what the intent of a previous Congress was, but it doesn't look like we have that problem here.
10.9.2008 6:28pm
scarhill:
As a layman reading this discussion, I can't help but think that it makes clear what a can of worms the whole question of legislative intent is. Wouldn't it be better to rule on the meaning of the text of the statute, and if that's not sufficient, punt it back to Congress as unconstitutionally vague?
10.9.2008 6:46pm
Dilan Esper (mail) (www):
The short answer is I suspect a court would ignore this.

Congress is essentially punting on the issue. And Congress has the right to punt. But if they do punt, it's up to the courts to construe the statutes.

I might add that there's a big one of these provisions (which I predict will also be ignored by the courts) in the Military Commissions Act, providing that the Geneva Conventions cannot be used to construe US war crimes laws, even though such laws were expressly enacted to satisfy the requirements of the Geneva Conventions.
10.9.2008 7:08pm
Bob from Ohio (mail):
Took 10 years to notice that provision in the Copyright Act?


every year I spend a couple of classes on it.


Yet never read the next paragraph.

Your students should ask for refunds.
10.9.2008 7:21pm
CJColucci:
To return to the statute at hand, if Congress wants sound recordings to be considered works for hire, it can say so; if it doesn't want sound recordings to be considered works for hire, it can say so. Quite obviously, Congress has not decided whether it wants sound recordings to be considered works for hire. Given a chance to take a stand, it has explicitly decided not to. The very amendment that tells courts not to consider Congress's prior vacillation on the subject as evidence is itself proof that Congress hasn't decided. Indeed, it is better proof than the vacillation itself.
10.9.2008 7:32pm
krs:
Or perhaps further proof that Congress is in the pocket of the RIAA--not only does it enact the RIAA's policy positions but also its vacillations.
10.9.2008 7:37pm
Linda Jellum (mail) (www):
Interestingly, I just finished an article on a similar issue: "Which is to be Master," The Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, ___ U.C.L.A. L. REV. ___(forthcoming 2009). It will be published in UCLA's law review this spring. I have not yet posted the article to SSRN, but if anyone would be interested in reading it, I would be happy to forward a copy. Please e-mail me. Ultimately, I conclude that the legislature violate separation of powers when it intrudes into the judicial function in this way.
10.9.2008 8:09pm
yclipse (mail):
I hope that Ms. Jellum makes reference to City Of Boerne v. Flores, Archbishop Of San Antonio, et al., 521 U.S. 507 (1997), where a major reason for the Court's ruling invalidiating the Religious Freedom Restoration Act as it applied to the states was that Congress had the temerity to include a provision requiring that courts use certain standards of construction in considering whether state laws should be overturned as unconstitutional.
10.9.2008 9:01pm
NYer:
Sadly, I have to agree with Bob from Ohio. How did it take you this long to notice this provision? I think I learned about this in my second week of copyright class. It's not exactly hiding in the statute.
Um, you learned about the addition of sound recordings to the list of works for hire in the 1999 amendments, and the deletion in 2000, your second week of copyright class?? Don't make me laugh. You didn't know what a "sound recording" (as defined in the statute) was in you second week of copyright class, so I find this not credible in the least. What you probably meant was that you learned about the work for hire doctrine in your second week of copyright class. But that's not responsive to my original posting, which you might want to try to read again.
10.10.2008 12:19am
Sagar (mail):
"I've been teaching copyright law for more than a decade,... "

so, you are a real law professor! can you tell us where?

So, why don't you spend 15 seconds of your time looking it up? Georgetown and Temple.
10.10.2008 12:47am
David M. Nieporent (www):
To return to the statute at hand, if Congress wants sound recordings to be considered works for hire, it can say so; if it doesn't want sound recordings to be considered works for hire, it can say so. Quite obviously, Congress has not decided whether it wants sound recordings to be considered works for hire. Given a chance to take a stand, it has explicitly decided not to. The very amendment that tells courts not to consider Congress's prior vacillation on the subject as evidence is itself proof that Congress hasn't decided. Indeed, it is better proof than the vacillation itself.
The problem with that argument is that it treats "Congress" as a unitary body throughout time. Let's say that the Congress that passed the original law did decide. Why should "vacillation" by a different Congress change the meaning of the original law?
10.10.2008 1:00am
Larry Fafarman (mail) (www):
The original post says,
That is, the provision Congress inserted says to courts, in effect: "When interpreting the work made for hire provisions, you must not take into account certain facts about the world, namely the fact that in 1999 we amended the statute, and that in 2000 we deleted the amendment."

If this amendment was in effect from 1999 to 2000, then this amendment must be applied to events that occurred while this amendment was in effect. An attempt to retroactively nullify this amendment is an ex post facto law, and the Constitution prohibits both Congress and the states from passing ex post facto laws.

The new law says,
. . . .neither the amendment . . . . nor the deletion of the words added by that amendment-- (A) shall be considered or otherwise given any legal significance, or (B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office.

The US Supreme Court has said that courts may consider legislative histories when making decisions, so how can Congress tell the courts not to consider the legislative history here?
10.10.2008 3:23am
KenB (mail):
I agree with those saying this is simply Congress trying to make clear its "intent"----trying extremely inartfully to make clear its intent. Almost any lawyer who regularly drafts contracts could, without giving it much thought, have done a better job.
10.10.2008 11:01am
Stevethepatentguy (mail) (www):

"When interpreting the work made for hire provisions, you must not take into account certain facts about the world, namely the fact that in 1999 we amended the statute, and that in 2000 we deleted the amendment."



The Work Made for Hire doctrine is a creation of statute, so congress can, by statute, tell the court whatever it wants to for interpreting the statute. The court should interpret the doctrine in accordance with the law as it is written. The statutory interpretation is still left to the judiciary, but based on the revised statute.

An interesting question is what is the effect of the change on works made for hire during the 1999-2000 window when the statutory change was in effect?
10.10.2008 11:37am
Annonymous Coward:

Quite obviously, Congress has not decided whether it wants sound recordings to be considered works for hire.


To the contrary, Congress (based on the wishes of the recording industry) desperately want the recordings to be considered "Work Made for Hire" they just haven't figured out the best way of making them so. By making it explicit for post 1999 work, the congress called the status of the pre-1999 works into question. The recording industry then decided that the status quo ante was more to their liking so they had it changed. Spreading small costs among the entire population while benefiting a few is one way to govern.
10.10.2008 11:51am
Ralphe (mail) (www):
I think when dealing with issues involving the RIAA the various courts should look at Congress as a Work for Hire.
10.10.2008 12:04pm
BZ (mail):
Well, as one who writes this type of constitutional and statutory text for a living (and, I should disclose, did so for one of the entities involved in this mess before this particular mess was initiated but I had no involvement in this one), this language is appalling.

Preambulatory text, done right, is intended to assist a reviewing court in understanding the drafters' intent if an ambiguity arises. The same with explanatory text, though, if internal, that usually mucks up the elegance of the substantive text itself. To avoid separation of powers problems, it should not have legal significance outside of that limited context. I think that's what was intended here. There is a possibility that a series of congressional actions (amendment and then another amendment rescinding the original amendment) could be misconstrued in a manner which would have been contrary to the intention of the drafters. Because of the general rule that you can look at changes in the text for guidance as to intent, the drafters were simply trying to say that we didn't mean to change the underlying understanding by either making the original amendment or deleting it.

The problem here is that the actual changes went beyond the amendments. If a statute is amended, the prior understanding of the unamended text must change; Congress cannot enact legislation with no effect. There are a whole series of cases about whether unintended effects are to be considered legally-consequential; if you're looking for one which was operative at the time of this legislative effort, try searching for some decision then out of the District Ct for Central California dealing with immigration or the amnesty for illegal aliens.

The question here is what happened when the language was amended to delete the original amendment. Did the amendment revert to the original language, and if so, did that reinvigorate the original understanding?

That would have been easy to do in drafting, simply by reference. What SHOULD have been done is to have the second change (no, I didn't want to say Second Amendment) incorporate what the understanding should have been. But that would have been more work, and possibly could have involved some political cost.

So the problem stems from more than just bad drafting. It was likely a lack of understanding of the whole problem, or even of the changes in text.

I suspect two sources for this: first, if I recall correctly, the actors involved had, near the time of this change, changed legal and legislative personnel and counsel, and the new people were probably scrambling to react to the changing circumstances caused by the 2000 elections. Second, the quality of staff in the Office of Legislative Counsel has appeared to be in decline for a number of years. They used to be pretty good at actually analyzing and fulfilling complex and far-reaching requests; now, despite a dramatic decline in substantive legislation (or even pieces moving to the floor), you often get what looks like something done by one of Prof. Post's first-year students.

Combine the two and you get what we have here: "pay no attention to the man behind the curtain." Bottom line: this frees a court to do pretty much what it pleases, while those who try to figure it out are left to guess which way a case may go.

All that is prologue to my comment on your ultimate question: the two clauses A and B are sufficiently different as a practical matter, that they can be interpreted differently and applied differently. Clause A says "they have no legal significance." This is the intrusion into separation of powers. Congress has specific ways of walling off judicial review, as in the recent TARP. This is not one of the appropriate ways.

B, on the other hand, is likely to be acceptable. As someone mentioned, the language of B is not couched in restrictive terms. Because it uses the terms "interpreted as indicat[ing]" how Congress acted, it can be used as guiding or clarifying language in an area where there is no specific text to guide the reviewing court. Perhaps Congress' intent is not required during review; if so, why would it matter, but if it is, Congress could explain what it was trying to do. This sort of language, as a practical matter, is much less likely to excite a reviewing court, and may survive.

The rub comes from the following sentence, which appears neither fish nor fowl. How can something be "interpreted" as if it never happened? Probably dooms this section, if only because it seems absurd. Just bad drafting all around.
10.10.2008 12:09pm
Stuart Buck (mail) (www):
What strikes me as odd in all this is the following: Can Congress tell courts not to "consider" certain things that incontrovertibly did happen in the past when they construe a statute? That is, the provision Congress inserted says to courts, in effect: "When interpreting the work made for hire provisions, you must not take into account certain facts about the world, namely the fact that in 1999 we amended the statute, and that in 2000 we deleted the amendment." I'm no constitutional law specialist, but that looks, to me, like it is encroaching on a core judicial function — the function of statutory interpretation; not just telling courts what Congress thinks a statute means (which Congress does all the time, via statutory definitions and the like), but telling courts what tools of statutory construction they may or may not use when interpreting the statute.


Doesn't it matter, though, what the "tools of statutory construction" are supposed to be for in the first place?

If one were discussing a tool (such as rule of lenity) meant to further the end of due process, then it would seem troublesome if Congress said, "Hey, no rule of lenity here, if there's any doubt, you should nail the criminal under this statute."

But if we're discussing a tool that is merely meant to serve as a proxy that supposedly elicits the legislature's intent, then why can't the legislature say, "By the way, that particular tool isn't relevant here, because we don't mean that"?
10.14.2008 2:13pm
Steve Friedland (mail):
Having looked at Linda Jellum's forthcoming article on statutory directives, I would recommend it most highly. It provides an insightful analysis of "the separation of powers," illustrating once again that it is really "the entanglement of powers." Linda offers some useful ideas for resolving future disputes.
10.17.2008 11:58am