The Volokh Conspiracy - 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

	[David Post, October 9, 2008 at 3:12pm] Trackbacks 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