An old saying among Second Circuit judges was "Cite Learned, but follow Augustus." Learned, was of course, Learned Hand, one of our greatest judges. Augustus was his first cousin, less known to the public, but also both a district and circuit judge. The point of the saying was that while Learned was a consummate stylist, Augustus was the more solid thinker. Mind you we are only talking about differences between the cream-of-the crop, but it was an era (the 1950s) where there was a lot of cream in that court. In addition to the Hands, there was John (later Justice) Harlan, Jerome Frank, Charles Clark, and Thomas Swann. (The clashes between Frank and Clark were legendary and presage much of the current debate about statutory interpretation: Clark once accused Frank, in the famous Arnstein v. Porter case, of having a "book burning mentality").
Learned Hand is the author of many famous copyright opinions, but one as a district judge stands out as a dud, and it is instructive that even the great can occasionally falter, at least to those like me who are virtually paralyzed by feelings of inadequacy. The case is found only in a compilation of decisions published by the Copyright Office. It is called Myers v. Mail & Express Co.36 Copyright Office Bulletin 478 (S.D.N.Y. 1919):
“[N]ot only are all the facts recorded in a history in the public domain, since the narration of history must proceed chronologically,—or at least, such is the convention,—the order in which the facts are reported must be the same in the case of a second supposed author. There cannot be any such thing as copyright in the order or presentation of the facts, nor, indeed, in their selection, although that selection may go the highest genius of authorship, for indeed history depends wholly upon a selection from the undifferentiated mass of recorded facts. “
Judge Hand’s comments reflect a naïve and blinkered understanding of how history is written: full of categorical statements (the narration of history must proceed known chronologically, “the “order in which the facts are separated must be the same in the case of a second author,” “there cannot be any such thing as copyright in the order of presentation of facts” history depends wholly upon a selection from the undifferentiated mass of recorded facts”). Historian M.C. Lemmon has explained the limited role of chronology in history:
[A] chronicle is a kind of calendar. It lists events (or other data) in the order of their dates. For example, one could produce a list of every Act of Parliament ordered (sequentially) according to their dates, or one could chronicle the offspring of a family over the generations. Insofar as their succession of time is the sole principle underlying their manner of presentation, it would appear continuity is the essence of the matter in the construction of a chronicle — and if so, then the chronicle is the narrative in its starkest, hence purest, form. But of course this is not the case. A chronicle’s “continuity” is merely abstract, superimposed by the purely formal rationale of the numerical ordering of dates; it is a meaningless continuity. Put formally, the chronicle is structured in terms of ‘this (then) that,’ whereas the narrative is structured in terms of “this then that.” In the narrative form, the “then” has a peculiar, distinctive significance which transforms a successor of events into a meaningful sequence.”
The “this’ and “then” refer to causality, the assertion by the selection and ordering of events that if y occurred after x, that is because x is the cause of y. But history has no beginning and no end: events which historians select are always culled for a purpose, principal of which is an attempt to create a retrospect intelligibility about something the historian almost always did not directly experience (except in the case of an autobiography): Historian Francois Furet has observed, “narrative history reconstructs an experience along a temporal axis. This reconstruction requires some conceptualization, but the latter is never made explicit. It is concealed within the temporal finality that structures and gives meaning to all narrative.” But even this assumes that there is one or more casual connections between events, assumes that historians can discover their existence, understand their importance, and accurately present them to a reader so that the reader may also comprehend them.
Historians are deeply skeptical such a task is possible. One thing historians do agree on is the falsity of Hand’s claim that the ordering of events must be the same in all accounts of the same period. As an initial matter chronologies do not exist in nature; Philosopher Hayden White has written, there is no preexisting, grouped series of facts arranged in a coherent order, much less a chronological one: order is created solely by the historian. For example, where would we find, prepackaged, the chronological order of all of the facts and events that led to the indictment of Lewis Libby in October 2005? Hand’s supposition that such an order exists, must be based on a Platonic view that these exists on objective logic inhering in the events themselves. This is clearly wrong. As M.C. Lemon put it,
“historical structuring is done intentionally by us, for our purposes, rather than being formally imposed by the anonymous requirements of dates succeeding each other. Our structuring is meaningful; it manifests the reasons we have in doing it: it constitutes a rationale. A computer can produce a chronicle, and do so more quickly, accurately, and hence efficiently, than a human being. But only human beings can create stories, because only they have reasons for doing something, whereby they endow what they do with meaning . . . . . . The chronicle is a “sequence” but it is not intelligible. It might even imply a story; one might infer an intelligibility from it; but its form is not in itself meaningful.
History — in the sense of giving meaning to events — is not found or discovered but rather invented. Or, as F.A. Olafson wrote: “we go to past not to discover facts but significances.” The historian alone provides that meaning, which is, under the Copyright Act, protectible.