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Feb/05

Biased Authorities: First Dan Rather, Now Nimmer Gets His


From the Abstract from Bartow, The Hegemony of Copyright Treatises, University of Cincinnati Law Review, Vol. 73, pp.1-64, Fall 2004

This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners and interest groups propose self-serving agendas, and courts are well aware that the parties to litigation all want to prevail when they advocate for particular legal conclusions. A copyright treatise editor could similarly have an economic interest in promoting particular interpretations of the law over others, but has no obligation to disclose this. Because no goal beyond articulating copyright doctrine in a manner that invites further uses and purchases of the pertinent treatise is facially evident, the tome has an appearance of objectivity and detachment.

This Article critiques the excessive reliance placed on copyright treatises by judges, lawyers, and even scholars and policy makers; explains why treatises in principle are not a legitimate source of positive law; describes the potentially undemocratic consequences of incorrectly perceiving treatises as nonpartisan, status quo baselines of extant copyright jurisprudence; and recommends an alternative approach to charting and cataloging developments in copyright law, the establishment and maintenance of a Restatement patterned after those promulgated by the American Law Institute in common law subject areas

Personal Note: I haven’t read this article so I don’t know how the author treated PATRY ON COPYRIGHT, but if you read Professor Patry’s discussion of the DMCA, for example, then you know what are his [clearly identified] personal viewpoints on legislation such as DMCA, and that he is no fan of the machinations of Congress, at least in that instance.

 

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