Thursday, April 09, 2009

Barbara Ringer

Former Register of Copyrights Barbara Ringer died this morning at 83. A very private person, there will be no ceremony. It is impossible to overstate Barbara's contributions to U.S. copyright law, including her highly distinguished service as Register of Copyrights from 1973-1980 and as Acting Register from 1993-1994. A career Copyright Office lawyer, she worked with the legends of the Office, including Abraham Kaminstein and Arthur Fisher. Her knowledge of both U.S. and international copyright law was breathtaking and unsurpassed, making me look like a pisher. There was no one who knew more about arcana, such as renewal, the manufacturing clause, and conceptual separability. The regulations, which she and then General Counsel Jon Baumgarten drafted on passage of the 1976 Act to implement that Act involved a herculean effort, and it was hardly the only one going on at the time: an 1,100 page report to Congress performance rights was also being prepared and was issued in June 1978. But she was also a big picture person, with moving law U.S. so that we could eventually join the Berne Convention as a top goal, one widely shared within the Copyright Office; she assisted with that effort even after leaving the Office.

Its not that things came easy for her; they didn't. Barbara had to sue to get her position as Register. But Barbara had personal and political skills that could meld together the contentious factions that threatened to tear apart every compromise in the 20 year road to passage of the 1976 Act. Her influence with the Congressional committees was unrivalled, especially in the House of Representatives, where Chairman Robert Kastenmeier had a warm, trusting relationship with her, a relationship made possible by Barbara's impeccable integrity, her concern that every voice be heard, her refusal to let an injustice be done but her pragmatic willingness to take less than what she might want for the greater good. She also was not afraid to speak her mind, especially on behalf of authors, the real authors. While one hears, constantly, corporate chieftains claiming that they're out there fighting for the creators, we all know that is b.s.: the creators are merely an expense item on a balance sheet, to be reduced as much as possible. We also hear politicians make similar paeans to creators, yet when was the last piece of legislation that was passed that benefited creators at the expense of corporations? When was the last time you heard a government official suggest such a thing?

Barbara did. In what is, I believe, the most arcane copyright case the Supreme Court has heard, Mills Music, Inc. v. Snyder, 469 U.S. 153 (1985), the Court, in a 5-4 decision, rules against the songwriter in favor of the music publisher in interpreting Section 304(c)(6)(A). In brief, the question was who receives the royalties from exploitation of a derivative work prepared during the term of the grant, after termination? It was clear that during the term of the grant, the songwriter received royalties according to his or her contract with the music publisher. But what after the songwriter terminated the music publisher's contract? Did the songwriter receive 100% of post-termination royalties, or, would the songwriter continue to receive royalties according to the contract? (The derivative work, in that case a sound recording of the song, could be exploited post-termination because the statute says so). The Second Circuit, per the great Judge James Oakes held for the songwriter, but the Supreme Court reversed.

Barbara was outraged, and testified before the Senate about the Court's error and the injustice it worked to authors. About music publishers, she said that had not bargained for the post-termination windfall and had done nothing to deserve it. We shall not see the likes of Barbara again; farewell.

11 comments:

William Patry said...

N.B. After writing this post, I read a special, April 2009 edition of the Copyright Office's internal "Copyright Notices" leaflet. The piece has a wonderful tribute by Arthur J. Levine, and excellent information on Barbara's role in international copyright.

Unfortunately, way too much the edition contains information that is both inaccurate and hagiographic. I say unfortunate because these passages are directly contrary to who Barbara was as a person. The piece rightly quotes Gayle Harris as saying, "Frequently [Barbara's] actions were quietly done and therefore generally unrecognized. She liked it that way." Why then, ascribe things to Barbara that she did not do, and focus on things that were not done well?

A great deal of ink is spent on a Advisory Committee set up by the Librarian in reaction to the Copyright Reform Act of 1993. Congress did not approve of the committee, generally boycotted it (I was the only one who went to its meetings), and then ignored it completely and deliberately in deliberations on the legislation. As great as Barbara was, this was far from her finest hour; she let a lawyer for the book publishers hijack the committee's focus, and as a result, the work of the committee was worthless to Congress. Barbara meant entirely well, and trusted an old friendship, but the advisory committee was a road to nowhere.

The special edition also spends time discussing the GATT restoration legislation, and states as follows: "Ringer felt that the expertise to draft such legislation lay inside the Office, and she saw major flaws in the draft. At a high-level interagency meeting, she was given 24 hours to redraft the text." I have no idea whether there was such a meeting, and if there was what she was tasked by it to do, but I was copyright counsel to the House of Representatives IP committee at the time, and the drafting of the provisions was our responsibility wholly, and one we did not share. It is common for many people to offer drafts, and the Office may have done so, but the Office was not a "player" in this legislation. The Office of Legislative Counsel was, because of the takings issue, an issue the Copyright Office has no expertise in. The other significant agency involved was USTR because of the trade issues. The puffing of the Office's role is wistful thinking.

The special edition then goes on: "Sending her staff home for the night, she wrote section 104A of the copyright law, making significant improvements that included the concepts of 'reliance parties' and automatic restoration of copyright," This is baloney. Barbara did not wrote section 104A, and the legislation had the provisions referred to from its very inception. The hagiography -- and perhaps the source for all of the wildly inaccurate information about the GATT restoration -- comes in this quotation from Eric Schwartz. Referring to the draft Ms. Ringer allegedly produced, he is quoted as saying, "I saw that a master had been at work in the night. ... It was remarkable." What is remarkable is absurd writing of this sort. We are not talking about creating a work of art, but rather the mundane task of drafting one section of legislation, a section which this week was held unconstitutional by the district judge in the Golan case. I wince when I read Section 104A, and I more than anyone wrote the bulk of it. There were a number of grievous errors in the section: one was committed by USTR, screwing up the effective date; another was committed by me and content owners in screwing up the treatment of derivative works. Why anyone would want to assign credit for such a poor job to is beyond me, but to then describe that work as the work of a master seems in bad taste to me.

There are many ways to honor people who did great things. The most important point is to be faithful to that person's personality; it is the conflict with Barbara's modest nature that has caused me to write this comment.

Jeffrey E Jacobson, Esq. said...

Good one Bill
Best
Jeffrey
(Jacobson)
ww.thefirm.com

Copycense said...

Bill:

We understand and respect your decision to discontinue regular publication of TPCB, particularly since the decision ultimately was rooted in personal integrity.

The last two posts, however, leave us rueing its absence, as these were people (and behind-the-scenes issues) that we (nor other members of the public) cannot find elsewhere. We did not know about Sir Laddie, and we knew little about Ms. Ringer; the posts about them humanize them and their efforts in an area that often is bereft of personality.

We are fortunate to have access to the treatise, but so many are not in the same position. We don't think it's overstating things to observe that for many, this blog essentially served as a worthy substitute for the treatise, allowing folks to get familiar with copyright and its history in a way that may have been impossible before you began writing.

(We still use this blog to review concepts and doctrine in a digestible manner, even as a prerequisite to using the treatise.)

In any event, this comment has gone on way too long. But we wanted to thank you for your four-plus years of publication, and the integrity with which you have published this blog and your treatise.

All the best.

Mike Perry said...

Unfortunately, by making copyright terms life-plus-something, we laid the foundation for the growing mess we're in with orphan texts. Finding out when someone like Mark Twain died is easy. Finding the same information about an unknown author is often impossible.

Making the generous assumption that we know the author was twenty when a book was published in 1980, we can get results this skewed.

1. He was run over by a bus that same year. His life-plus-fifty copyright expires in 2030.

2. He lives, hale and hearty, to be 100 (2060). Life-plus-fifty, if we still had it, would mean his copyright would not expire until 2110.

2110 - 2030 = 80 years of legal ambiguity.

Add to that the fact that a life-plus-something copyright always means a literary estate is being created and yet nothing was done to ensure that the recipient of that estate is designated. (It wouldn't have taken much to write that into probate law boilerplate.) Coupled with the fact that we have no way of knowing how to contact the author, much less trace down his heirs, means the copyright law is a total, utter mess. It gives "rights" to people whose very existence, much less the contact information to undertake copyright clearance, is unknowable.

I'm sure Barbara Ringer did quite a bit of good for copyright law. But copyright law after her retains the same problem it has always had. It's law written of, by, and for the famous, particularly authors so successful that their interests are always being looked after by agents and their literary estate carefully passed on by lawyers. All that is all too obvious to anyone who engaged in even a moment's reflection about the actual impact of those laws. Why didn't and why isn't anyone in the field thinking about these implications? I don't know.

I might add that it's that utter confusion that's driving Google's attempt to impose upon copyright holders a "settlement" that "opts-in," on their terms, most copyright holders from 1923 to January 5 of this year if those holders do not take formal steps to opt-out. Google and Google alone will acquire the right to make money on the writings of people who hold valid copyrights but who fail to hear about this all-encompassing settlement in the next nine days.

Compare that to a parallel set of events. After months and months of announcements on every TV station in the country, we delayed something as minor as digital TV for four months, lest someone not be ready. And yet a Second Circuit district court is poised to radically reduce the copyright protections of virtually every copyright holder, heir of copyright holder and (given the time span involved) heir of heir of a copyright holder with virtual no public awareness of what is happening. This makes how we implemented life-plus copyright law look brilliant in comparison.

That's why I and six other authors and their representatives (including those for the literary estate of John Steinbeck) have filed a request with the court, asking for a four-month delay in the upcoming May 5 deadline for opting out. The Manhattan law firm of DeVore and Demarco has taken on this task for us. They hand delivered a letter to the court on Friday, so it should be in the news this next week.

You can go to Google for full details about the settlement, all 300-plus pages of legal jargon including no less that 160 technical terms. You can also go to my web site at InklingBooks dot com for a copy of DeVore & DeMarco's letter to the court. And finally you can do a Google search for "Lynn Chu Google" for a well-written critique of the settlement in the Wall Street Journal.

An appeal to the court by Internet Archive was turned down last week, so this letter is perhaps the only thing standing in the way of a juggernaut that will completely alter the framework of copyright law in this country. No one practicing IP law should let this matter pass without a careful review.And this isn't just about authors. Publishers love backlist titles since they generate income at little expense. If this settlement is approved by the court, Google and Google alone will acquire a backlist that could include millions of titles.

--Michael W. Perry, Inkling Books, Seattle

RiotingPacifist said...

Wait so who's to blame for death+50 years you/her/somebody else?

Because It's clear that has been the biggest screw up in copyright law! 28years + renewal if needed, would have been much better than the current fubar situation

William Patry said...

Dear Rioting Pacifist. I had no role in life plus 50. Certainly Barbara felt strongly about it, but so did many many other people. I agree we would be better off with the term set out in the 1909 Act.

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Stopping by to find something from the archives to refute that my "grasp of law is tenuous at best."

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