Legislative Drafting Gaffes

While the mounting of legislative initiatives frequently takes a long time, sometimes spanning years, the execution can be brutally swift. Haste makes waste and mistakes. The reason for the haste is the simple reality that most copyright legislation is passed in the very last minutes of a Congress, much like most labor deals struck right before a threatened strike, or court house steps settlements. The 1909 Copyright Act was rushed to and signed by Teddy Roosevelt only five minutes before his term expired (in those days in March). Many times last minute changes are made on the floor, under extreme pressure and lack of sleep. I will give a few examples of errors that have occurred.

In the 1831 Copyright Act, Congressman William Ellsworth, Noah Webster's son-in-law, was pushing for term extension, increasing the original term of protection from 14 years to 28 years, with the renewal period remaining at 14 years. The bill, at Webster's request, also granted the increased original term for works first published before 1831. Ellsworth ran into opposition, and the 72 year old Webster decided to come down to the Capitol from his Connecticut home and lobby personally for passage. On the way, he became ill, but recovered and gave grand speeches that had the desired effect. His illness and advanced age, however made Ellsworth wonder what would happen if Webster died before the Act was passed. Under the 1790 Act, if the author died during the first term, the work went into the public domain at the end of that term even though there were surviving heirs. Ellsworth's new bill took care of that problem for new works, but not for old works. So, at the last minute, on the floor, he changed the bill to provide that if an author of a work covered under the old statute died during the first term, the copyright would not be placed in the public domain and would also enjoy the new 28 year term. But by drafting in haste, he made an error: the renewal term was granted only to the heirs, not to the author even though when the author lived. This is was a problem that effected only a small group of authors, and even though Webster later discovered the error, it was never fixed.

The 1909 Act, despite being drafted over a period of three years, was full of inconsistencies. The late and very great Judge Henry Friendly of the Second Circuit (among whose former clerks are Chief Justice John Roberts, Chief Judge of the First Circuit Michael Boudin and Judge Pierre Leval of the Second Circuit was particularly critical of it, writing in Rohauer v. Killiam Shows, Inc., 551 F.2d 484,486 (2d Cir. 1977)(Friendly, J): “As has been so often true in cases arising under the Copyright Act of 1909, neither an affirmative nor a negative answer is completely satisfactory. A court must grope to ascertain what would have been the thought of the 1909 Congress on an issue about which it almost certainly never thought at all,” and in The Gap in Lawmaking-Judges Who Can’t and Legislators Who Won’t, reproduced in Benchmarks 41, 48 (1967): “Anyone who has had to deal with the Copyright Act of 1909 must stand in awe of the ability of the framers to toss off a sentence that can have any number of meanings.” One gap was the lack of a public performance right for motion pictures, the only way they were exploited then, and despite an amendment in 1912. The courts "cured" this omission by considering that a copy was made.

More recent errors include a wrong effective date for Section 104A, and two Section 512s. In one piece of legislation I was involved in, House Legislative Counsel gave to the floor the wrong version of a bill that amended parts of the statute that didn't exist anymore. It was too late to fix it, and the Senate passed it knowing of the error. It was fixed the next year.