Thursday, June 02, 2005

Principle and the Responsibility of Policy Making

In yesterday's posting, I detailed the vote switches in the Sony case and how Justice Blackmun gave up his majority by refusing to make further changes to his draft opinion. He stated: "Five votes are not that important to me when I feel that proper legal principles are involved." As I pointed out, the result of his refusal to budge was a majority opinion (by Justice Stevens) that was far worse, from Blackmun's perspective, than any changes Blackmun had been asked to make. I questioned whether Blackmun's standing on principle was the right decision.

The answer to whether standing on principle (at least his principles) was the right thing for Blackmun to do raises other issues: was it the right thing to do for the rest of us? Was it even the right thing to do for Blackmun himself, meaning, did he better advance his own policies by refusing to compromise and thus having to express his views in a dissent rather than make law through a majority opinion? Would he have better advanced his principles by avoiding a majority opinion that was a clear anathema to him, albeit at the price of accommodating some views he disagreed with?

Such dilemmas are commonplace and intrinsically matters of subjective judgment, but when they are played out by public servants at the highest levels of government, such as the Supreme Court, Congress, and the Executive Branch, might we not inquire into whether public servants should transcend their own desire to stand firm, sacrificing a bit for the greater common good, at least as they perceive the greater common good?

Those making such choices must perceive a greater public good is in play, otherwise there wouldn't be principles of such importance involved that it is worth standing firm even though you are fully aware that by doing so, your favored course of action will lose out. I do not intend to make my own evaluation of the merits of the substantive matters at issue in such decisions (e.g., whether Sony should have been held contributorily liable or whether the time-shifting involved there was or wasn't fair use), but I am interested in how public officials act when at the precipice.

I had a first hand experience with this in 1994, while copyright counsel to the House IP subcommittee. In 1992, I explored with our chief counsel, Hayden Gregory, the idea of finally extending a public performance right to sound recordings. After many meetings with various parties, we decided to present the idea to our boss, Chairman William Hughes. Mr. Hughes agreed that in light of emerging digital technologies, the time was ripe for exploring the issue. We held an oversight hearing and then many, many more meetings, including industry roundtables. Mr. Hughes introduced a bill granting a "pure" performance right bill: no exceptions. This was, of course, just a starting point and at an extreme end of the pole, but it made a point: that he believed a public performance right for sound recordings was as valuable and necessary as all the other Section 106 rights.

The hard work then took place: getting cosponsors, and taking care of objections. Musical publishers and performing rights societies were an initial obstacle. The bill almost died over demands made by music publishers. We then faced the biggest obstacle of all: broadcasters. Broadcasters were the biggest obstacle because of their crushing lobbying strength: they could kill any bill.

Broadcasters demanded a complete exemption. We attempted to negotiate for very generous and then extremely generous exemptions. To no avail. For the broadcasters, it was their way or the highway. And they had to muscle to insist on that approach. (It is, by the way, a telling condemnation of conspiracy theorists of the legislative process that the broadcasters' chief point person with us on this was my best friend, Tom Olson of Wilmer Cutler & Pickering, and a former Senate IP subcommittee staffer. Despite our closeness and enduring affection for each other, and my utter frustration with broadcasters, neither of us budged, nor was our friendship affected in the slightest).

When it became clear that the broadcasters wouldn't budge, Hayden and I recommended that Mr. Hughes push the bill forward anyway (that is, cave in to their demands), despite our personal objection to such an exemption as well as to many previous compromises in what had become a very ugly bill. By this time, Mr. Hughes had announced his retirement at the end of the session, and it was our belief - and his - that if we didn't get this bill passed, a new one would be introduced in 1995 and that bill would, from our perspective, represent, ultimately, much worse policy. A last ditch meeting was held with Jay Berman, then head of RIAA, so that Jay could hear directly from Mr. Hughes the basis for Mr. Hughes' refusal to move the legislation (and hopefully convince Mr. Hughes to change his mind)

Mr. Hughes refused purely on principle; he objected to a complete broadcaster exemption, and insisted that he would never put his name on a bill that gave them one. And as chair of the subcommittee no bill would go forward without his name on it. To Mr. Hughes, the exemption was not deserved and was terrible policy. He was well aware of the consequences of his refusal: a much worse bill next year, and from his perspective (and ours), that is exactly what happened. In other words, Mr. Hughes had a Justice Blackmun Sony moment.

It is easy for me to say that Justice Blackmun and Mr. Hughes should have acted differently, but it wasn't my name that was going on the opinion or on the bill, and can it be said clearly that their conception of the appropriate role of public servants is not to facilitate bad policy?


ruidh said...

It's just an example of the ongoing tension between pragmatism and ideology. Different individuals have different preferences for compromise. Pragmatic people will compromise values in order to get a bette result.

Congress 30 to 40 years ago used to be more pragmatic on many issues then Congress is today. Both the right and the left have become increasingly ideological on many issues.

William Patry said...

Ruidh referred to pragmatism.My boss, Mr. Hughes, was a moderate to conservative Democratic (his district was Republican), and this might support his theory. But in my experience, IP has never been partisan. We introduced every bill we could in parallel with DeConcini and Hatch in the Senate and our House Republican counterpart, Mr. Moorhead. We had a particularly close relationship with Hatch. That nonpartisan approach continues today with Lamar Smith and Howard Berman in the House (otherwise polar opposites) and Hatch and Leahy in the Senate (ditto). Indeed one copyright bill had Frist and Barbara Boxer as cosponsors. But I think the best example one can point to on pragmatism is Judge Posner, both individually and in contrast with his colleague Judge Easterbrook

Timothy Phillips said...

Wide support in Congress for a proposal doesn't make the proposal "pragmatic". The copyright term
extension had almost no one speak against it, but it is "pragmatic" policy only in the sense that it could have been even worse.

William Patry said...

Timothy's point about wide spread support having nothing to do with pragmatism is a good one (and for the record I testified against term extension). What I was referring to in my reply to Ruid was not widespread support, but to something quite different: Congressman Hughes' approach to legislating only those matters that stood a chance of passing (and that represented good policy). That's why he worked with his counterparts in the Senate and the Republicans in the House. On tough bills, such cosponsorship also showed industry that they better come to the table, since no industry (other than the broadcasters) could avoid to buck both subcommittee chairs.

Timothy Phillips said...

Professor, thanks for the clarification, (though I would still tend to think that any copyright bill that Hatch cooperated on was extremist by definition). Hughes sound like the sort of legislator we could use more of.

And yes, I am aware of your writings against the term extension. Your "Idle Rich" journal article remains one of the significant analyses of those events. To say that you "testified against" term extension doesn't quite match my own memories. I remember your testimony in the Senate as being not so much against term extension, as for more generous termination rights. Your point was that the extension in itself would do nothing for some authors (including performers) whose contracts had been worded a certain way. But obviously you'd remember your own testimony better than I would. And, though I don't agree with you on everything, I agree that the termination procedure in the present statute is too generous to assignees and too cumbersome to authors and their heirs. Maybe you could do a 'blog column on that question sometime ?

William Patry said...

Your memory is excellent, except my testimony was in the House, before my old subcommittee, in the period after I had left the subcommittee but before starting as a full-time law professor at Cardozo.

The decision had already been made to pass term extension (Hayden Gregoty and I had rejected it the prior year) and so I was faced with a common dilemma: do you rail against a fait accompli or do you try to improve it? I chose the latter, and that was to argue the term extension should be given directly to the authors.

I tried to enlist Sonny Bono's help, but to limited success. In private meetings with members's staff, there was support for the idea, but there were unfortunately no author's groups supporting it (another story), so my proposal died and instead I pushed with some success (the third permination period) for better termination rights although I testified in favor of my idea.

I will do a future column on termination rights,probably Tuesday.