Judge Boudin, Per Stirpes, and An Authorization Right

Michael Boudin is Chief Judge of the U.S. Court of Appeals for the First Circuit. He clerked for the legendary Second Circuit Judge Henry Friendly. He and Judge Richard Posner constitute the Federal Circuit Judges Cat Society. Judge Boudin is a wonderful, generous, open person,with a brilliant intellect and very readable opinion style. On Friday, he released an important copyright opinion, Venegas-Hernandez v. Asociacion de Compositores y Editores de Musica Latino Americana. Judge Boudin's opinions are concise like Judge Posner's and like Judge Posner's, they have a helpful habit of invisibly leading the reader along the path of his thinking, and what great thinking it is.

Two aspects of the most recent opinion bear mention. The first is a technical but important issue of statutory interpretation: Section 304(a) bumps wills and in a compulsory bequest gives the deceased author's renewal right to designated statutory heirs, in order. The first class is "widow and children." (The statute says widower too, but that is statistically rare). The question, where there is both a widow and children, is how they take: do they take per capita (a widow and two children would each take a third) or per stirpes (the widow takes 50% and the two children 25% each)?

The Copyright Office favors per capita, but a divided Sixth Circuit went with per stirpes, BMI v. Roger Miller Music, Inc., 396 F.3d 762 (6th Cir. 2005), as does Judge Boudin and his court, but only after a different review than that taken by the Sixth Circuit, given that he entertained the possibility of looking at state law for guidance. I favor the per capita approach, but both opinions are essential reading (including Judge Daughtrey's dissent in the BMI case).

The other aspect of Judge Boudin's opinion that merits review is his musing about whether there exists a separate authorization right such that that right may be violated where there is no direct infringement. After noting there is a plain language argument in favor of the right, he ultimately concludes otherwise, based, correctly, I believe, on the purpose of the "authorization" language being to statutorily recognize the common law doctrine of contributory infringement which does have a direct infringer requirement.