A Legal Blog by Aaron | Sanders, PLLC

My Response to Prof. Menell Part 3-Supreme Court Disrepsects Legislative History in Kirtsaeng

Kirtsaeng’s Near-Contempt for 1960’s-Era Legislative Materials

This post continues my response to Prof. Menell’s contention that, based on the Supreme Court’s use of 1960’s-era legislative materials to construe the Copyright Act of 1976 (the “1976 Act”), it is appropriate to use such materials to help resolve the knotty question of whether merely making a copyrighted work available (for download or whatever) violates the distribution right. I had previously criticized Prof. Menell for relying on such materials when courts have generally limited the use of legislative materials to those generated by the Congress that enacted the legislation in question. For more background, see my first post in this series.

After reading the Supreme Court decisions cited by Prof. Menell, I came to the conclusion that most of them are irrelevant, referencing the 1960’s-era materials in passing or for context, but three of them—CCNV, Kirtsaeng and Stewart v. Abend—had something of relevance to say on the subject. Last time, I discussed the decision that most supports Prof. Menell’s, view, CCNV. This time, I’ll discuss the decision that most supports my view, Kirtsaeng.

At a minimum, CCNV seems to accept the possibility 1960’s era legislative materials could be used to construe the Copyright Act of…


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My Response to Prof. Menell, Part 2: Community for Creative Non-Violence

(Part 2 of 5) The Fine Line Between an Alternative Basis and Simple Dicta

The question we’re asking is whether it’s appropriate to rely on legislative materials generated by Congresses who did not enact but did oversee the drafting of the legislation in question. Prof. Peter Menell thinks it is, at least where the Copyright Act of 1976 (“1976 Act”) is concerned. I’m pretty sure it’s not. The question matters because Prof. Menell’s re-write of a crucial passage of Nimmer on Copyright relies on such materials. I have criticized this re-write on several grounds, including this unexamined reliance on pre-enactment legislative materials. See the last post for further details.

Ordinarily, you can’t rely on pre-enactment legislative materials. Ordinarily, when this issue arises, Congress has drafted but failed to pass a bill, but the next Congress manages to pass substantially the same bill. This is not unusual. In these situations, the courts have been clear that it is inappropriate to rely on the previous Congress’ legislative materials when construing the statute. Normally, this doesn’t pose a problem because the later (enacting) Congress will simply adopt the previous Congress’ work—why reinvent the wheel?

But the 1976 Act was not typical. First, it might’ve been…

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My Response to Prof. Menell Regarding the Propriety of Relying on Pre-Enactment Legislative History of the Copyright Act of 1976

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…

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