Saturday, May 25, 2013

Legislators' mistakes -- and what judges should or shouldn't do about them

Suppose that the awful truth is that federal statutes sometimes just aren't written very well. The drafters (legislators, staff members, lobbyists, administration officials or others) choose their words poorly, not as part of some devious political scheme but just by mistake. What should courts do when they're called upon to interpret and apply the resulting laws?

Here's a recent example, the subject of the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons (No. 11-697, decided March 19, 2013). Mr. Kirtsaeng, a Thai, went to graduate school at Cornell. While he studied here, he “asked his friends and family in Thailand to buy copies of foreign edition English-language textbooks at Thai book shops, where they sold at low prices, and mail them to him in the United States,” where Kirtsaeng was able to resell them at higher prices. John Wiley & Sons sued Kirtsaeng for having sold eight of its copyrighted books, and won a judgment against him for $600,000 ($75,000 for each book). (That sum seems somewhat less oppressive if seen in light of the 600 John Wiley volumes that Kirtsaeng apparently imported – but it’s still the kind of number that gives enforcers of intellectual property rights a bad name.)

Here are the statutory provisions (as described by the Supreme Court – I’m not a copyright lawyer!) that were directly in play.

First, as a general proposition a copyright-holder has the exclusive right to publish a book and offer it for sale. That’s in 17 U.S.C. § 106(3).

Second, a publisher has a right to sell books outside the US and bar their importation into the US. That’s in 17 U.S.C. § 602(a)(1), which provides:

Importation into the United States, without the authority of the owner of copyright under this title, of copies … of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies … under section 106 ….

Third, the Supreme Court decided in an earlier case that the section 602(a)(1) right to bar importation only protects (as section 602(a)(1)) itself puts it) “the exclusive right to distribute copies … under section 106(3).” So if an importation wouldn’t violate that exclusive right to publish a book and offer it for sale, then it wouldn’t be illegal.

Fourth, the section 106(3) exclusive right to publish is subject to an exception, called the “first sale” doctrine. This doctrine says, essentially, that the publisher’s exclusive right is exhausted once someone buys the book. So, for example, if I purchase a John Wiley textbook, I’m free to re-sell it later on.

If the “first sale” exception applies to books sold abroad, then the importation limit in section 602(a)(1) loses much if not all of its force – the only books that couldn’t be imported back into the US (and here sold at less than the price for the US editions) would be those that the importer acquired by some method other than purchase.

So: does the “first sale” exception apply to books published abroad, or does it only apply to books published and sold in the US? Here’s the language of the “first sale” provision, 17 U.S.C. § 109(a):

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Clearly section 109(a) does not say that the first sale exception applies only to books published and sold in the US. But does it mean that?

You can see how mistakes could get made in answering questions like these. These texts are difficult, complicated documents with lots of moving parts. They're also being subjected to analysis by a lot of readers, many of them looking for flaws or loopholes and eager to exploit them. I write exams that 100 students take, and almost always I learn things about what I've written from what the students argue. Statutes can get a lot more readers, with a lot more time and experience, scrutinizing their possible meanings.

So, again, mistakes are not surprising. They're not even necessarily proof of carelessness. So what should courts do with them?

There's an old answer to this question, from what was called the Legal Process school. These writers argued that courts were engaged in the broad process of governance just as legislatures and presidents are. As a general proposition, therefore, courts should seek to contribute constructively and cooperatively to this process, and should assume that lawmakers are reasonable people pursuing reasonable purposes reasonably. Concretely, they should try to read statutes so as to minimize the impact of legislators’ mistakes and imprecisions.

But there is another possible answer. This one says that the task of courts is to enforce the rules of the constitutional structure. According to those rules, the words enacted into law are the law, and the interpretive question isn't what they were intended to mean but what they in fact say. If what Congress said was ill-chosen (and even if the choice was inadvertent, and not motivated by some covert political calculation, as these interpreters often suspect), then Congress can amend it - but the courts won't do Congress a favor by pretending the law says something it doesn't.

There is some force to both of these views. I like the idea of courts as part of a shared process of governance, but I certainly wouldn't want courts helping out with government acts of oppression - and there must be some limit on cooperativeness set by the principle of "separation of powers." On the other hand, for me the claim that the text must mean only what it says is less persuasive - among other reasons, since often what it says is unclear. But if the text doesn't have any real grip, then it's not there for us when we need it - for instance, to say that a statute prohibiting torture really does outlaw torture.

So the question is what to do with these somewhat conflicting intuitions. If both have some measure of truth to them, a natural response would be to take both into account. Very broadly speaking, I think that's what all or almost all of the justices of the Supreme Court mean to do. Moreover, as I’ve said on this blog before, I think the ardor of past battles over interpretive theory has somewhat cooled; the opinions I read feature little grand debate about interpretive principles, though a lot of vigorous employment of interpretive tools to vindicate conflicting readings of the law. But after some decades of struggle by the advocates of textualism - who also seem frequently to be conservatives skeptical of liberal "big government" – I think we've arrived at an unfortunate point on the interpretive spectrum.

The location of that point is illustrated by the Supreme Court’s decision about the copyright statute in Kirtsaeng. The majority argues that the statute's "first sale" provision has no geographic limitation stated – an observation that is completely correct. It also marshals quite an array of statutory interpretation arguments to support its conclusion that no geographical limitation should be inferred. For example, it sees an array of practical problems involving “libraries, used-book dealers, technology companies, consumer-goods retailers and museums,” and argues that these problems “are too serious, too extensive, and too likely to come about for us to dismiss them as insignificant – particularly in light of the ever-growing importance of foreign trade to America.”

Suppose (as indeed may be the case) that just as a matter of putting together the lessons of the various tools of statutory interpretation now used by courts, the majority’s reading is more persuasive than the contrary position of the dissent. Maybe the end result is unfortunate – perhaps US publishers do need to be able to block importation and resale of lower-priced editions marketed abroad – but if that’s so then it’s up to Congress to fix the problem.

Now that may be good or bad - and it certainly is supported by close and ingenious statutory interpretation. Moreover, the author of the majority decision, Justice Breyer, is far from a rigid textualist. Still, it's not until we reach Justice Ginsburg's dissent that we learn that apparently the US has over two decades or more steadfastly argued in international negotiations that publishers should have exactly this power, and we've successfully insisted on treaty language steering clear of addressing this issue, despite the desire of many countries to eliminate such power. The majority says that Ginsburg’s evidence about our stance in these decades of international negotiations – evidence which it doesn’t do much to refute – shows “nothing indicative of congressional intent in 1976,” when the current “first sale” statutory language was adopted. But really – is it likely that we've spent all this effort on this point, when meanwhile our own law long since took this power away from publishers?

It seems to me, in other words, that here the Supreme Court has followed the body of interpretive tools to a conclusion that just misses reality. And “missing reality” strikes me as an unfortunate interpretive stance!

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